Analysis of H.R. 10, S. 2845 and White House Letter:

Analysis of H.R. 10, S. 2845 and White House Letter:
Provisions Impacting Civil Liberties, Human Rights and Immigrants

Harmful Provisions of H.R. 10 and S. 2845 Supported by the White House
Letter of 10/18
S. 2845, Sec. 112(a)(13) - New blanket FOIA exemption for intelligence
agencies: The White House supports provisions of S. 2845 that appear to give the
vast majority of information within the National Intelligence Director’s
control an automatic and blanket Freedom of Information Act (FOIA) (b)(3)
exemption. The White House also appears to be proposing new withholding statutes
under the FOIA for a broad range of agencies, including the FBI and Treasury
Department, which do not currently have such blanket withholding authority.
See Letter from Condeleezza Rice, National Security Advisor, to Rep. Hoekstra
and Sen. Collins, at 4, regarding “Protect Sources and Methods� (October 18,
2004) (White House Letter).
H.R. 10, Sec. 2001 - Secret surveillance of non-citizens not connected to
terrorist groups. Expands “national security� surveillance – surveillance
approved by a secret court without probable cause of crime – to include any
non-citizen (other than a lawful permanent resident) who is suspected of
involvement in terrorism even if not connected to any foreign government or terrorist
group.
H.R. 10, Sec. 2043 - Expands “material support� crime to make it a crime
for U.S. citizens to be members of a designated terrorist organization even if
they provided no funds. The United States has never before in history made
it a crime for citizens merely to be a member of any organization, unless
membership involved violent or illegal activity.
H.R. 10, Sec. 2191 - Allows information about U.S. citizens obtained by a
federal grand jury to be shared with foreign governments without judicial
approval. Amends grand jury secrecy rules to allow information about American
citizens to be shared with foreign governments, including repressive governments
such as Syria, Iran or North Korea, without judicial approval.
H.R. 10, Sec. 2502 - New federal death penalties for crimes on list of
terrorism offenses. Under current law, 20 of 43 federal “crimes of terrorism�
carry a death sentence if death results. This provision applies a death sentence
to all such crimes – including such broad crimes as material support of the
lawful activities of a banned organization, financing of groups with links to
terrorism, or damaging a federal building. A prosecutor who is unable to
prove a defendant guilty of hijacking, bombing or other offenses that already
carry the death penalty could still seek to execute a defendant based on other
charges.
H.R. 10, Sec. 2602 - Presumption of detention for any person charged with
crime on list of terrorism offenses. This provision relieves the government of
the burden of having to show with evidence, at a bail hearing, that a
suspect is dangerous or likely to flee – instead, the suspect would have to prove
they are not dangerous and are not likely to flee. The presumption already
applies in international terrorism cases; this provision would apply the
presumption to all cases where a crime listed as a terrorist crime is charged.
H.R. 10, Sec. 2603 - Lifetime supervision for any person convicted with
crime on list of terrorism offenses. The government could impose supervision
requirements, potentially for life, for any person convicted of a terrorism
crime – and potentially incarcerate the person if those conditions are not met.

H.R. 10, Sec. 3009 - Revoke visas at will, allowing deportation of legal
temporary residents. Makes a non-citizen with a valid, unexpired visa that is
then revoked (which can occur at the will of a consular officer) subject to
deportation; bars all judicial review of the decision to revoke a visa.
H.R. 10, Sec. 3010 - Suspend writ of habeas corpus, severely limiting power
of courts to review detention and deportation, including some claims that a
detainee will be tortured if returned. Limits the power of federal courts to
review immigration actions by explicitly suspending, for the first time since
the Civil War, the “Great Writ� of habeas corpus, limiting all judicial
review of detention and deportation to one appeal to the federal courts of
appeals, under an extremely narrow standard that allows the courts to consider
only “pure questions or law� or constitutional claims. Claims that are
explicitly barred from review include some claims under the Convention Against
Torture, claims for discretionary humanitarian relief (such as a non-citizen father
of a severely disabled U.S. citizen child who is the child’s sole
caregiver), and all claims involving criminal convictions, even in cases that occurred
years or decades ago involving lawful permanent residents who came to the
United States at an early age.
H.R. 10, Sec. 3031 - Applies USA PATRIOT Act guilt-by-association provisions
to allow removal to a country where a non-citizen’s “life or freedom would
be threatened� because of race, political opinion, or other reasons.
Provides that any non-citizen who is described in section 411 of the USA PATRIOT Act
– which bar admission to any non-citizen the government says supports a
political group that has ever used violence – may be removed to a country where
his “life or freedom would be threatened because of the alien’s race, religion
� or other protected ground. Currently, bar applies only to those
convicted of serious crimes or that the government says are “a danger to the security
of the United States.�
H.R. 10, Sec. 3032 - Outsource torture with “diplomatic assurances� –
indefinite detention of “dangerous� non-citizens without any court review.
Allows removal to countries that practice torture with “diplomatic assurances�
that a detainee will not be tortured; effectively amends section 412 of the USA
PATRIOT Act to authorize Secretary of Homeland Security to designate, in his
“sole unreviewable discretion,� certain non-citizens as “specially
dangerous aliens� for indefinite and potentially life-long detention, with judicial
review barred entirely. The White House stated that it “looks forward to
working with Congress� to craft procedural protections and refine a category of
indefinite detainees. However, the White House “opposes� requiring “
diplomatic assurances.�
H.R. 10, Sec. 3033 - Remove non-citizens to failed states, countries that won
’t accept them, and countries to which the non-citizen has no connection
whatsoever. Allows the government to remove non-citizens to countries that lack
a functioning government or whose government will not accept them, as long
as the foreign government does not “physically prevent� their return, and
allows non-citizens to be exiled to a county with which they have no connection
whatsoever if the country accepts them.
H.R. 10, Sec. 3034 - Expand USA PATRIOT guilt-by-association provisions.
Amends section 411 of the USA PATRIOT Act to make it even easier to bar
non-citizens who are members or support any political organization that has used
violence, even if the organization has not been designated as a “foreign
terrorist organization,� expands exclusion to include innocent spouse or minor
child, and requires “clear and convincing evidence� for non-citizen to prove he
should not have known such an organization that has never been designated had
used violence (defense is never available for designated organizations). The
White House does not specifically address this provision, but would appear
to support it.
H.R. 10, Sec. 3035 - Makes USA PATRIOT Act guilt-by-association provisions
grounds for deportation of long-term lawful residents, even if association
occurred years or decades earlier. The new, broader guilt-by-association
grounds for barring non-citizens accused of involvement with any political group
that uses violence are made retroactive and could be used to deport long-term,
lawful residents, even if the association occurred decades earlier and was
legal at the time.
Helpful Provisions Rejected by the White House Letter
S. 2845, Sec. 201 - Disclosure of Aggregate amount of Intelligence Budget.
The 9/11 Commission recommended disclosure because “[s]ecrecy, while
necessary, can also harm oversight.�_[1]_ (aoldb://mail/write/template.htm#_ftn1)
The Senate bill provided for disclosure but the White House letter objects to
it. See White House Letter, at 2.
S. 2845, Sec. 207 - Creation of an Information Sharing Network. _[2]_
(aoldb://mail/write/template.htm#_ftn2) The White House supports development of “
a secure information sharing environment� described in the bills as enabling
instantaneous and automatic sharing of information on all U.S. persons
contained in many different databases. But it appears to oppose the very modest
reporting requirements contained in the Senate bill as well as the direction to
consider privacy and civil liberties in designing such an “environment.�
S. 2845, Sec. 211 - Creation of Statutory Civil Liberties Board. The 9/11
Commission noted a “shift of power and authority to the government� and
therefore called “for an enhanced system of checks and balances to protect the
precious liberties that are vital to our way of life.�_[3]_
(aoldb://mail/write/template.htm#_ftn3) The Commission therefore recommended the creation of a
board to protect privacy and civil liberties._[4]_
(aoldb://mail/write/template.htm#_ftn4) The Senate bill provides for such a board. The White House
opposes the Senate provision, arguing that it has already created a board by
executive order. However, the White House board would be composed primarily
of political appointees from the affected agencies, leaving the fox to guard
the chicken coop.
S. 2845, Sec. 224 – Access of Congressional Committees to National
Intelligence. The Senate provision would require certain members of the intelligence
community to provide intelligence reports to certain members of Congress upon
request “unless the President certifies that such information is not being
provided because the President is asserting a privilege pursuant to the United
States Constitution.� The White House stated that it was “very concerned�
about this provision. See White House Letter, at 6.
S. 2845, Sec. 225 – Authority of certain government employees to report
directly to Congress concerning false reports to Congress. The Senate provision
would allow employees to disclose to Congress information, including
classified information, “that an employee reasonably believes provides direct and
specific evidence of [inter alia] a false or inaccurate statement to Congress�
without first reporting such information to the appropriate Inspector
General. The White House stated that it was “very concerned� about this provision.
See White House Letter, at 6.
S. 2845, Title 1, Subtitle C - Authorities of Inspector General and of
Privacy Officers. The White House opposes the authorities of the Inspector
General and of privacy officers contained in the Senate bill that are intended to
protect privacy and civil liberties.
S. 2845, Sec. 1014 - Prohibition Against Torture, Cruel, Inhuman or
Degrading Treatment of Prisoners. The 9/11 Commission recommended that the United
States should “engage its friends to develop a common coalition approach toward
the detention and humane treatment of captured terrorists.� The Senate bill
includes a provision stating that, inter alia, no “prisoner shall be subject
to torture or cruel, inhumane, or degrading treatment or punishment that is
prohibited by the Constitution, laws, or treaties of the United States.� S.
2845, Sec. 1014(e). The White House is opposed to the Senate provision.
See White House Letter, at 8-9.


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_[1]_ (aoldb://mail/write/template.htm#_ftnref1) U.S. National Commission
on Terrorist Attacks Upon the United States, The 9/11
Commission Report, at 103 (Washington: GPO, 2004). The Commission went on to
state that:
[t]he overall budget of the intelligence community is classified, as are
most of its activities. Thus, the Intelligence committees cannot take
advantage of democracy’s best oversight mechanism: public disclosure. This makes
them significantly different from other congressional oversight committees,
which are often spurred into action by the work of investigative journalists and
watchdog organizations.�
See also, Recommendation 33, at 416 (stating that “to combat the secrecy and
complexity we have described, the overall amounts of money being
appropriated for national intelligence and its component agencies should no longer be
kept secret.�).

_[2]_ (aoldb://mail/write/template.htm#_ftnref2) The table of contents lists
the section as 206 but the section is numbered 207 in the text of the bill.

_[3]_ (aoldb://mail/write/template.htm#_ftnref3) The 9/11 Commission Report,
at 394.

_[4]_ (aoldb://mail/write/template.htm#_ftnref4) Id. Recommendation 24, at
395.

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