Intelligence Reform Bill Contained Strong Immigration Provisions

By Bill West

The recently enacted Intelligence Reform Bill was almost derailed due to controversy over certain immigration related provisions. Those provisions were shelved during heated last minute negotiations at the end of the 108th Congress. Tucked away in the middle of the bill were several non-controversial immigration provisions that may prove to be powerful tools in the Government's counterterrorism legal arsenal...if they are innovatively and aggressively pursued. By Bill West.

I have a few observations about some of the key immigration provisions that remained in the Intelligence Reform bill. While the highly publicized issues of drivers licenses for illegal aliens, curtailed asylum proceedings and expanded expedited deportation proceedings were deleted, some important yet "low key" provisions survived...and these are potentially very good, including for counter-terrorism efforts.

Sections 5501 � 5506 of the Intelligence Reform Bill specifically relate to foreign-born human rights persecutors. These provisions, in one form or another, have been proposed in Congress for the past five years, ever since the issue of aliens who were modern-day war criminals and torturers (human rights persecutors) became a publicly known matter...fueled in a large way by the persecutor apprehension project started in late 1999 and early 2000 in Miami by the INS Investigations Division National Security Section there in conjunction with the District Counsel�s Office. INS, unfortunately, never picked up that innovative, aggressive and locally successful project, nationally. It did, however, get the attention of Congressman Mark Foley (West Palm Beach) and Senator Patrick Leahy of Vermont, who sponsored the respective bills that ultimately merged into the provisions within the Intelligence bill.

The provisions change the Immigration and Nationality Act so that foreign nationals who engaged in torture and "extrajudicial killing" are now excludable and removable from the US. Amazingly, before this, there were no such provisions in US immigration law and Immigration authorities had to rely on other immigration violations to target such suspects. Problem was...often there were no such "other" violations and the bad guys remained untouchable; though, we often were able to get creative and find something on which to get them. These changes will now make it easier to target some very bad people. The USG won't need convictions, but will need "clear and convincing" evidence for immigration proceedings. And, since these are civil proceedings, the law allows for retroactive prosecution...for acts committed before enactment of the statute. Powerful stuff.

There are a couple of other important provisions. The law gives the investigative lead to DOJ Office of Special Investigations (DOJ/OSI), Eli Rosenbaum's famed Nazi hunting unit. They have lots of experience in pursuing and denaturalizing and deporting Nazi war criminals. Their approach will be to primarily focus on cases where the suspects have made it through the system and already naturalized...just like the Nazis...and pursue the denaturalization process. The law allows for OSI to approach these cases broadly and from the criminal perspective if it could lead to denaturalization, such as criminal fraud, and many of these cases will be ripe for criminal prosecution since the naturalization will have occurred within the 10 year statute of limitations for such prosecution...a difference from their Nazi cases. So, this will be a new mission and approach for OSI, and they will definitely need to beef up their investigative cadre (they currently have very few investigators and are top-heavy with attorneys). The law does not preclude the Bureau of Immigration and Customs Enforcement (ICE) from continuing to pursue these targets with their authority...as in deportation and other immigration fraud charges.

The other important change is Section 5502 that makes it a persecution violation for a former foreign government official who engaged in "particularly severe violations of religious freedoms" as defined by the International Religious Freedom Act of 1998. The International Religious Freedom Act of 1998 was originally passed in response to Chinese government restrictions on religious minorities, but applies to all nations. In this context, it will apply to any former foreign government official. Considering that in so many Muslim countries religious minorities are routinely persecuted, this small provision of law may prove to be a quite powerful enforcement tool for the USG (especially given its retroactivity). Imagine the USG good guys having a former Saudi government official in their sights who is now in the US as a permanent resident, or maybe even a naturalized US citizen, who otherwise was "clean" but Intel reflects is linked to supporting terrorist bad guys...but there just isn't enough to get him on those terror violations. And, this former Saudi official worked in a ministry dealing in some way with religious affairs (as so many of their government agencies do)...suddenly the USG will have a legal enforcement handle against this suspect.

These few immigration provisions, low-key as they may be, are significant and good on their own for the anti-persecutor purposes. But, since persecutors are also likely to be linked to or are themselves terrorists, these cases potentially have a direct and important impact on the USG's CT efforts. Hopefully, the right agencies in the USG recognize all this and approach it appropriately.

There was an article published in FrontPage Magazine on December 27 summarizing much of this, Torturers and Terrorists Beware, which can be found at http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=16414.

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