William Fisher

NEW YORK, Dec 29 2004 (IPS) — The law to revamp U.S. intelligence services was passed at the 11th hour in the last Congress partly because of a deal that deleted many contentious anti-immigration provisos. But the sponsor of those sections says he will reintroduce them as "must pass" legislation "on the first day of the 109th Congress in January."

With Republican President George W Bush, many human rights groups, most Democrats and a number of civil libertarian conservatives arrayed against the measures, such an act is destined to trigger a fierce battle on Capitol Hill.

"These common-sense provisions are aimed at preventing another 9/11-type attack by plugging holes in our homeland security efforts. We must address these vulnerabilities very soon because we know America’s enemies diligently probe our vulnerabilities to carry out their deadly intentions," said their sponsor, Republican Congressman James Sensenbrenner, the powerful chairman of the House of Representatives Judiciary Committee.

Most media coverage of the last session’s immigration proposals focused on such issues as proposed uniform security standards for drivers’ licenses and border security, such as closing the five-km hole in the U.S.-Mexico border fence near San Diego, California.

But far more worrying to human rights groups and civil libertarians are provisions that relate to tightening asylum regulations.

For example, the legislation would allow immigration judges to determine witness credibility in asylum cases while significantly reducing the opportunity for appeal; stipulate that all terrorism-related grounds for inadmissibility are grounds for deportation; and provide for the "expedited deportation" of immigrants and visitors, even to countries where they are likely to face prison torture.

Human rights groups have unanimously opposed these provisions.

According to Susan Benesch of Amnesty International USA, the Sensenbrenner proposals "would prevent refugees from finding safe haven in the United States and erode their chance for due process in presenting their asylum claims."

"These anti-refugee and anti-immigrant measures were not recommended by the 9-11 Commission for good reason – they would not improve our national security. On the contrary: they would deny safety to people whose own security is in danger," she told IPS in an email interview.

Amnesty, she added, "also opposes the outsourcing of torture – the United States is bound by the U.N. Convention Against Torture to prevent or punish torture, certainly not to facilitate it."

The intelligence legislation was based on the recommendations of the 9/11 Commission, established to investigate the Sep. 11, 2001 terrorist attacks on New York and the Pentagon. The Sensenbrenner provisions were not part of the commission’s recommendations.

Much of the controversy surrounding the congressman’s suggestions stems from the widespread round up of primarily Arab and Muslim immigrants and visitors after the 9/11 attacks and again just prior to the 2004 presidential election.

More than 5,000 people were arrested, and many detained for long periods without access to lawyers. None were charged with a terror-related crime, but many were deported, some to countries where they were likely to be arrested again and face torture in detention.

The U.S. Department of Justice (DOJ) has refused to disclose the names of any of the detainees.

Amnesty’s Benesch says her organisation "would be equally opposed if no Muslims had been rounded up," because the proposals will work to deny long-established asylum rights.

Mark Dow, author of ‘American Gulag: Inside U.S. Immigration Prisons’, told IPS, "even sympathetic observers continue to believe that though the post-911 roundup failed to catch terrorists, it was intended to do so. This ignores the evidence that roundups were at least in part a cover to make it look like the Justice Department was doing something."

"It is less the case, as is commonly asserted, that roundups of Arabs and Muslims were intended to fight terrorism than that terrorism was used as a pretext to justify the roundups – a pattern that is in full force today around the country," he added.

After 9/11 the Immigration and Naturalisation Service (INS) was separated into three agencies, one of which is the U.S. Immigration and Customs Enforcement (ICE). All are now part of the new Department of Homeland Security (DHS).

One of the few Sensenbrenner provisions that made it into the final intelligence law increased the numbers of beds in detention facilities. Dow says it is "unconscionable to give DHS more detention capacity. Instead, Congress should establish a permanent independent oversight system to review the legality and humaneness of all current and future immigration detainee cases, and to monitor the treatment of all detainees."

In American Gulag, Dow pointed out that immigration law is not part of the U.S. criminal justice system – which gives government agencies virtually unlimited scope to hold people indefinitely, without charge, without access to attorneys and without public disclosure.

For years, the INS failed to furnish Congress with accurate numbers of asylum-seekers, despite a federal law requiring this data. Thus precise data is difficult to come by. The U.S. Government suggests there are about 22,000 detainees in U.S. immigration prisons at any one time, and that on average several thousand of these will be asylum-seekers.

Other sources have estimated that in 2001, 86,180 people sought asylum in the United States and 68,400 applications were reportedly granted. Yet other sources report that in 2000, there were 48,054 asylum-seekers to the United States, and 47,584 cases in the first nine months of 2001.

Washington sources believe most of the original Sensenbrenner proposals are likely to make it into the new bill. These include:

– "Expedited removal" – allowing immigration enforcement officers to deport without a hearing any non-citizen not admitted to the United States by immigration authorities and who has been here for less than five years.

This could result in the summary deportation of people who could face serious harm if deported. According to advocacy group Human Rights First (HRF), "These provisions place broad uncontrolled power in the hands of immigration officers whose decisions are not subject to formal administrative or judicial review."

– Summary deportation of battered spouses, children whose unlawful entry into the country was connected to the abuse they suffered, and victims of human trafficking and victims of serious crimes such as rape, torture, trafficking, incest, domestic violence, sexual assault, involuntary servitude, kidnapping and abduction.

– "Preventing terrorists from obtaining asylum," a section that, according to HRF, "is NOT about preventing terrorists from getting asylum. Terrorists are already barred from asylum."

Instead, the proviso would allow genuine refugees to be denied asylum if they were unable to document relevant conditions in their countries through U.S. State Department reports, could not prove a persecutor’s central reason for harming them, or any inconsistencies were noted between statements they made to U.S. government employees and their testimony before an immigration judge.

– Giving adjudicators broad leeway to deny applicants asylum based on factors such as their perceived "demeanour."

– Eliminating stays of removal pending judicial review, allowing refugees to be returned to the persecution they fear while their cases are pending in federal court. "This provision, applicable to ALL immigration cases, would have a particularly devastating impact on refugees and persons facing torture if they are deported," according to HRF.

While the U.S. media has largely focused on border security issues raised in the proposed bill, asylum policy has come under less scrutiny. However, ‘The New York Times’ wrote in a Sep. 25, 2004 editorial: "In jails and prisons across the United States, thousands of people are detained who have never been accused of crimes."

"The guards treat them like criminals, and the criminals they bunk with often abuse them. They are held for months, sometimes even years, but unlike the criminals, they do not know when their sentences will end. They receive this treatment because they are foreigners who arrived in the United States saying that they were fleeing persecution at home … They come here chasing America’s promised liberty, and they end up in chains."