December 20, 2004

December 20, 2004 | Commentary on Political Thought

Legislative Lowdown -- Week of December 20

Think the intelligence-reform issue is over with? Think again.

Beneath the surface of the overwhelming majority of Congressmen who voted for the most significant overhaul of our intelligence laws in more than half a century lies a festering dispute--one likely to dominate the early weeks of the next Congress:

What's the best way to eliminate provisions in our immigration laws that effectively harbor terrorists and enable them to evade detection without provoking an all-out legislative battle over the larger and more divisive issues related to immigration?

Most press accounts emphasized the sticky debate over the real-time use of intelligence information on the battlefield and the chain-of-command issues this raised. Journalists glossed over the details of the provisions inserted into the House-passed version at the insistence of the House Judiciary Committee, focusing almost exclusively on a much-needed provision that would have required states to determine, prior to issuing a driver's license, whether the applicant lawfully resides in the United States. They opted to ignore other significant, and emotion-laden, provisions that would have enabled prosecutors to detain, deport and extradite suspected terrorists.

The Speaker has given the House Judiciary Committee Chairman, Wisconsin Republican Jim Sensenbrenner, a firm commitment to attach these provisions to a "must-pass" bill early in 2005, most likely the next supplemental appropriations for operations in Iraq and Afghanistan. This guarantees that the first legislative flare up next year will once again relate to the war on terrorism.

That these provisions enjoy deep and broad support among House Republicans was evident after a closed-door, members-only meeting on November 20, during which Chairman Sensenbrenner and Armed Services Committee Chairman Duncan Hunter made impassioned pleas to House leaders on behalf of their respective committees' handiwork. The member reaction was so overwhelmingly sympathetic to the two chairmen that the Speaker felt obliged to subject the proposed conference agreement to an additional round of negotiations. After three weeks of sporadic negotiations with an immovable Senate, a consensus emerged among House leaders that Chairman Duncan Hunter's (R.-Calif.) demands were nonnegotiable, while those raised by Chairman Sensenbrenner were not. The senators agreed.

On the morning preceding House approval of the final bill, which accepted the Armed Services provisions and jettisoned Sensenbrenner's package, a determined Judiciary Committee dug in for one final push. A senior Judiciary Committee staff member made Sensenbrenner's case before a tense gathering of more than 100 conservative House staff, following on the heels of several largely tactical assessments of the status of House-Senate negotiations by officials from House leadership and the Armed Services and Intelligence Committees.

One could hear the proverbial pin drop as he detailed how Senate negotiators had insisted that one House-approved provision after another be dropped, including ones that would:

  • Deny easy asylum to suspected terrorists. This would have overturned a decision by the notoriously liberal 9th Circuit Federal Court of Appeals to grant asylum to individuals thought by their governments to be terrorists, precisely because such a suspicion constitutes persecution on the basis of "political beliefs."
  • Overturn a 9th Circuit decision that bars U.S. immigration authorities from using evidence provided by foreign governments regarding the terrorist activity of asylum applicants.
  • Close a loophole that allows terrorists not only to escape deportation, but to be released free and clear into America's communities. The Convention Against Torture prohibits the deportation of aliens to countries where torture techniques might be used against criminal suspects. In 2001, the Supreme Court ruled against the indefinite detention of aliens who cannot be deported. This decision, and U.S. adherence to the Convention Against Torture, has resulted in the release of hundreds of criminal aliens and some terrorist suspects, including one individual who conspired to blow up a school for American children in Jordan.
  • Repair a potentially fatal inconsistency between two provisions of U.S. law. One bars certain aliens from entering the U.S.; another makes it impossible to deport those who bypass this prohibition and enter illegally. As Sensenbrenner noted in a set of talking points disseminated prior to the final vote: "This means that some terrorists and their supporters can be kept out of the United States, but as soon as they set foot on our shores, we cannot deport them."
  • Bar aliens who attend terrorist training camps from entering the United States--no ifs, ands or buts.
  • Limit the number of appeals currently available to criminal aliens prior to deportation.

Upon finishing his presentation, the staffers reacted angrily to the prospect that the immovable opposition of Democrats in both the House and Senate would cause these provisions to fall on the cutting room floor. Chairman Sensenbrenner, one imagines, could mount a credible presidential campaign on the basis of these reforms, given the strong support provisions similar to these receive in polls.

Hill leaders will try mightily early next year to manage this debate by segregating the security aspects of these issues from the broader immigration issues. How, for example, do we crack down on the issuance of drivers licenses to potential terrorists without denying them as well to nannies trying to get to a job, who threaten no one?

These issues can't be ignored much longer. Watch for them to surface--with a vengeance--early next year.

Mr. Franc, who has held a number of positions on Capitol Hill, is vice president of Government Relations at The Heritage Foundation.

About the Author

Michael Franc Distinguished Fellow
Government Studies

First appeared in Human Events