A Sign of Things to Come

Article excerpt

As I write, several days before the election, Congress's last-minute effort to enact the 9/11 Commission's recommendations appears to have stalled, largely because of disagreement over the scope of budgetary authority that the new National Intelligence Director should have--a question of passionate interest to the bureaucrats in and around Washington but likely to have little impact on civil liberties. Virtually lost in the debates, however, was the fact that the House bill would have radically rewritten immigration law to return us to the McCarthy era. That almost no one voiced concern about this aspect of the law suggests that no matter who wins the presidential election, those who care about civil liberties will have to redouble their efforts. Antiterrorism initiatives are likely to proliferate under either administration--as part of a renewed 9/11 Commission bill or otherwise--and the silence about civil liberties that has characterized the presidential campaign is a troubling sign of the challenges to come.

The House version of the 9/11 bill contained a wide variety of anti-immigrant provisions, and some of these did generate public opposition. Civil liberties and human rights groups were joined by both the 9/11 Commission and the White House in objecting to provisions that would have made political asylum more difficult to obtain, denied due process to foreign nationals here less than five years by expanding "expedited removal," limited judicial review and allowed deportation of foreign nationals to countries with records of torture if that country promised not to torture the particular foreign national being expelled. But almost nothing was heard about other parts of the law, which would have redefined the "terrorist" grounds for removal, even though those amendments would have resurrected wholesale the tactics of the McCarthy era: penalizing speech; imposing guilt by association; retroactively holding people responsible for conduct legal at the time they engaged in it; and even punishing innocent children for acts of their parents, over which they have no control.

The House bill would have made pure speech a deportable offense, for example. Any immigrant who "endorsed terrorist activity," broadly defined as virtually any use or threat to use a weapon against person or property, could be expelled. So, too, could any foreign national who advocated support for a "terrorist organization," even more broadly defined as any two or more people who have ever engaged in such activity. The bill also would have made mere membership in or support of any such "terrorist organization" a deportable offense, even when the government had not identified the group as off-limits, and even if the person could prove his activities didn't further any terrorist activity whatsoever. …