Congress' effort to enact the 9/11 Commission's recommendations has stalled, largely because of disagreement over the scope of budgetary authority that the new National Intelligence Director should have -- a question of passionate interest to the bureaucrats in and around Washington but likely to have little impact on civil liberties. Virtually lost in the debates, however, was the fact that the House version of the bill would have radically rewritten immigration law to return us to the McCarthy era. That almost no one voiced concern about this aspect of the law suggests that those who care about civil liberties will have to redouble their efforts. Antiterrorism initiatives are likely to proliferate under the second Bush administration -- as part of a renewed 9/11 Commission bill or otherwise -- and the silence about civil liberties that has characterized the presidential campaign is a troubling sign of the challenges to come.
The House version of the 9/11 bill contained a wide variety of anti-immigrant provisions, and some of these did generate public opposition. Civil liberties and human rights groups were joined by both the 9/11 Commission and the White House in objecting to provisions that would have made political asylum more difficult to obtain, denied due process to foreign nationals here less than five years by expanding ''expedited removal,'' limited judicial review and allowed deportation of foreign nationals to countries with records of torture if that country promised not to torture the particular foreign national being expelled. But almost nothing was heard about other parts of the law, which would have redefined the ''terrorist'' grounds for removal, even though those amendments would have resurrected wholesale the tactics of the McCarthy era: penalizing speech; imposing guilt by association; retroactively holding people responsible for conduct legal at the time they engaged in it; and even punishing innocent children for acts of their parents, over which they have no control.
The House bill would have made pure speech a deportable offense, for example. Any immigrant who ''endorsed terrorist activity,'' broadly defined as virtually any use or threat to use a weapon against person or property, could be expelled. So, too, could any foreign national who advocated support for a ''terrorist organization,'' even more broadly defined as any two or more people who have ever engaged in such activity. The bill also would have made mere membership in or support of any such ''terrorist organization'' a deportable offense, even when the government had not identified the group as off-limits, and even if the person could prove his activities didn't further any terrorist activity whatsoever.
Under this law, a South African immigrant who supported the African National Congress's lawful, nonviolent antiapartheid work during the 1980s would be deportable today, and it would be no defense to show that the support was legal at the time. (The ANC also used violence, and the State Department regularly labeled it a ''terrorist organization'' until it came to power in South Africa.) Indeed, Nobel Peace Prize-winner Nelson Mandela himself would be barred entry. Also deportable under the House bill would be anyone who ever wrote in defense of the right to use force for national liberation, as did the Founders of our own country. It would have even rendered deportable immigrants who urged support of the Northern Alliance against the Taliban, or who supported the contras in Nicaragua, regardless of whether their targets were lawful military targets, and regardless of the fact that the United States supported both military struggles. Perhaps cruelest of all, the law called for deporting spouses and children of anyone found inadmissible for having ties to a ''terrorist organization,'' visiting the sins of the father on the child regardless of the child's involvement in or even knowledge of the father's wrongdoing.
These measures are unnecessary and unconstitutional. It is already a deportable offense under the Patriot Act to support a designated terrorist group, and to engage in or support any terrorist activity. And the new provisions violate guarantees of free speech, free association and due process -- rights the Supreme Court has said don't distinguish between citizens and foreign nationals.
Yet these measures inspired little comment, much less opposition. So close to the election, neither party wanted to be portrayed as ''soft on terrorism.'' In this campaign, it was considered political suicide to express concern for civil liberties -- Dick Cheney would immediately portray you as inviting a nuclear attack. In December 2001 Attorney General Ashcroft was roundly criticized for testifying in Congress that those who raised civil liberties concerns ''only aid terrorists.'' But this fall most politicians acted as if they were under Ashcroft's orders. If this is what the pressure of a presidential campaign does to civil liberties, just imagine what the next terrorist attack will do.
David Cole is a professor at Georgetown University Law Center and author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism".
© 2004 Miami Herald