Monday, October 25, 2004

After the 9/11 Commission Report made its recommendations for specific measures to prevent a repeat of the 2001 terrorist attacks, there was a brief moment of hope that Congress and the White House would implement the recommendations in a responsible, conscientious, and nonpartisan manner. Alas, that brief moment has ended. The House and Senate are now engaged in a battle over their two versions of the intelligence legislation, which, in the House version, contains a number of controversial new anti-immigrant and law enforcement provisions that were not part of the Commission's recommendations and that push the boundaries of the Patriot Act to raise even more serious civil liberties concerns.

The Senate version, which was approved by a strong majority on October 20, sticks very closely to what the Commission recommended.

  • It provides for a National Intelligence Director who would have authority over the nation's 15 civilian spy agencies.
  • It creates a National Counterterrorism Center designed to respond quickly to terrorist threats.
  • It sets up a civil liberties board to address concerns about violations of constitutional rights.
  • It requires the government to make the overall intelligence budget, which is now secret, a matter of public record.

By contrast, the House version of the bill adds a bundle of provisions that the Republicans already tried to cram into the so-far failed Patriot Act II. If passed unchanged, it would

  • Establish a database to store the lifetime travel history of foreign nationals and of U.S. citizens.
  • Effectively create national identity cards by rejecting any state IDs or licenses that did not meet specific, and as yet unspecified, requirements.
  • Permit the FBI to get surveillance warrants from the secret federal intelligence court for individuals who have no known connection to a foreign government or terrorist group. At present, the FBI can only get warrants from the secret court when it can establish a connection between the subject of the investigation and a foreign government or terrorist organization. As an editorial in the St. Petersburg Times points out, a warrant can always be obtained from a regular criminal court if an individual is suspected of illegal activity. But regular criminal courts do not hand out warrants without proof of probable cause, which is required by the Fourth Amendment proscription on unreasonable search and seizure.
  • Shift the burden of proof for granting bail from the government to the suspect. In other words, instead of the government having to prove to the court's satisfaction that a suspect is too dangerous to release on bail, the suspect would have to prove that he is NOT too dangerous to release on bail.

The House version would also water down the authority of the National Intelligence Director. In addition, the House Republicans pushing this bill--and the White House--reject the provision for a civil liberties board as well as the requirement for making the intelligence budget public.

All in all, if you are looking for a scary Halloween story, this is it. What's scariest of all, of course, is that it's not fiction.

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