Legislation of the 109th Congress (2005-2007)
On September 29, 2006, Congress passed the Military Commissions
Act, a bill ceding enormous powers to the executive branch to
name enemy combatants and "unlawful enemy combatants"
potentially from among U.S. residents. It also abolishes the basic
right of Guantánamo detainees to ask a judge to consider whether
there is legal cause to imprison them -- the right of habeas corpus.
Ironically, this bill leaves potentially innocent and low-level
detainees imprisoned forever, while providing military tribunals
for the 14 recently-transferred and suspected al-Qaeda high-level
Bill Number: HR 6166, S.3930
Status: Passed House and Senate on September 29, 2006
Roll Call Votes: House of Representatives, 250-170; Senate, 65-34.
HR 6166 was sponsored by Representative Duncan Hunter (CA-52), and introduced on September 25. The first vote came two days later, 253 to 168, with the final vote following the Senate's passage of the bill on September 29.
S.3930 was sponsored by Senator Mitch McConnell (R-KY), and introduced on September 22. The measure came up for a vote on September 29, just before Congress recessed for the fall Congressional election.
In the Senate, several amendments to the Military Commissions Act revealed the struggle to mitigate the unprecedented damage to basic rights.
Senator Arlen Specter (R-PA) offered S Amendment 5087, which would have restored the right of habeas corpus for detainees. Many senators made fine speeches quoting Thomas Jefferson and Nuremberg lawyer Robert Jackson, and four Republicans stood with 44 Democrats to support the amendment. But it failed 48 to 51, with Senator Ben Nelson (D-NE) as the only Democrat to vote no.
Senator Jay Rockefeller (D-WV) offered S Amendment 5095, which would have provided oversight over certain Central Intelligence Agency programs. The amendment failed 46-53, along party lines, with 45 Democrats and only Republican Senator Lincoln Chafee (RI) voting for the amendment.
Senator Robert Byrd (D-WV) offered S Amendment 5104, which would have sunset the establishment of new military commissions after December 31, 2011. The amendment failed 47-52, along party lines, with 45 Democrats and two Republicans -- Senator Lincoln Chafee (RI) and Senator Arlen Specter(PA) -- voting for the amendment.
Senator Edward Kennedy (D-MA) offered S Amendment 5088, which would have clarified that inhumane interrogation tactics prohibited by the Army Field manual could not be used on U.S. persons. the amendment failed 46-53, along party lines, with 45 Democrats and only Republican Lincoln Chafee (RI) voting for the amendment.
On October 5 and October 10, BORDC held two nationwide grassroots conference calls: one with Center for Constitutional Rights president Michael Ratner and another with Guantánamo attorney Sabin Willett, to learn more about the implications of the Military Commissions Act, and to strategize about local response.
House Sponsor:Sen. John Warner (R-VA), with Rep. Ike Skelton (R-MO) co-sponsor.
Status in the House: Passed/agreed to in House by voice vote.
Status in the Senate: Unanimously passed with an amendment on 9/30/2006.
House Sponsor: Rep. Thomas E. Petri (R-WI), with 44 co-sponsors.
Senate Sponsor: Sen. James Inhofe (R-OK), with 10 co-sponsors.
On October 30, 2006, the National Lawyers Guild released a statement strongly opposing the Animal Enterprise Terrorism Act, saying that "if enacted into law, the Act could define as a terrorist act any activity causing a business classified as an "animal enterprise" to suffer a profit loss-even if such financial decline is caused by peaceful protests, boycotts, media campaigns or leafleting." Guild President, Marjorie Cohn said, "The AETA could lead to the prosecution of undercover investigators, whistle-blowers and other activists as 'terrorists.'"
Rep. Dennis Kucinich (D-OH) was the sole voice opposing the legislation when it passed by voice vote on November 13, 2006. He warned that passage of S 3880 would endanger First Amendment protections, "I am not for anyone abusing their rights by damaging another person's property or person, but I am for protecting the first amendment and not creating a special class of violations for a specific type of protest."
On Wednesday, March 1, 2006 the Senate voted 95-4 to approve S. 2271, the Sununu amendments to the PATRIOT Act reauthorization bill, providing for recipients of Section 215 orders to challenge those orders after a year. The following day, March 2, the Senate voted 89 to 10 in favor of the controversial reauthorization bill (H.R. 3199). The House voted 230-138 to approve S. 2271 on March 7.
President Bush signed Public Law 109-177 on March 9, 2006. His signing statement indicates he may not fully comply with reporting requirements to Congress, mandated in Sections 106A and 119 of the reauthorization. Each of these sections requires reports on the use of National Security Letters to Congress.
BORDC's summary page of provisions and changes to the PATRIOT Act.
BORDC's Call for Congress to fix the PATRIOT Act, March 2, 2006
Legislation Proposed but Not Passed
Status: On November 14, Senator Arlen Specter (R-PA) introduced this bill on the Senate floor. It was read a second time, and placed on the Legislative Calendar.
Bill Number: S. 2453
Status: On September 13, by a vote of 10 to 8, the Senate Judiciary Committee approved the bill.
Sen. Arlen Specter (R-PA) introduced S 2453, which would establish procedures for judicial review and approval of broad electronic surveillance programs that could target innocent Americans. Read the Center for Democracy and Technology's analysis (PDF).
Would (1) make FISA optional and endorse the President's assertion that he has unlimited power to wiretap Americans, (2) make it even more difficult for Americans to obtain judicial review of extra judicial surveillance activities by establishing a set of rules that make it very hard to get a full and fair hearing on the merits, and (3) authorize electronic surveillance in violation of the Fourth Amendment's requirements of probable cause and particularity and its prohibition against general warrants.
Read the September 6, 2006, letter to Senator Specter from the bipartisan group of six Senate sponsors of the SAFE Act. The letter urges Senator Specter to hold more hearings before proceeding with his bill.
Bill Number: S.
Status: On September 13, 2006, by a vote of 10 to 8, the Senate Judiciary Committee approved the bill.
Introduced by Sen. Mike DeWine (R-OH), co-sponsored by Sens. Olympia J. Snowe (R-ME), Chuck Hagel (R-NE), and Lindsey Graham (R-SC), this bill would permit warrantless surveillance of calls between the United States and another country involving "a designated terrorist organization" for 45 days, after which the government can stop the eavesdropping, seek a warrant, or explain to Congress why it wants to continue without a warrant.
On March 7, 2006the Senate Select Committee on Intelligence, chaired by Sen. Pat Roberts, voted to reject a proposed investigation into the administration’s domestic surveillance program. Instead, the proposal would establish a seven-member panel to oversee the program, which allows the National Security Agency to monitor phone calls and e-mails between U.S. residents and suspected terrorists abroad without first obtaining warrants from a secret court that handles such matters.
Status: On September 25, 2006, the bill was read for the second time, and placed on the Senate Legislative Calendar under General Orders. Calendar No. 635.
Drafted by Senate Judiciary Committee Chair Arlen Specter (R-PA), the bill lists as its sponsor, Senator Mitch McConnell (R-KY). It was introduced by Senator Bill Frist (R-TN). Bill co-sponsors are listed as Senator Mike DeWine (R-OH), Senator Bill Frist (R-TN), and Senator Arlen Specter (R-PA).
This bill is companion to HR 5825, which passed on September 28, 2006, giving the Senate version extra potential for quick passage when Congress reconvenes.
Both bills cede excessive power to the executive branch to continue its domestic wiretapping program with no real judicial oversight. The Center for Democracy and Technology has published a comparison of HR 5825 and S 3931.
Bill Number: H.R.
Status: Passed by the House by a vote of 232 to 191 on September 28, 2006. 13 Republicans, 177 Democrats and 1 Independent voted against passage. The vote followed a narrow defeat of a Democratic motion to offer a bipartisan substitute bill, 202-221.
The bill would allow warrantless surveillance of all international calls and emails of Americans and businesses in the U.S. without any evidence they're involved with any terrorist organization. The bill was drafted by Rep. Heather Wilson and supported by Rep. Peter Hoekstra, Chairman of the House Intelligence Committee, and Rep. James Sensenbrenner, Chairman of the House Judiciary Committee.
During Congress' "lame duck" session, it is likely that Senators Frist and Specter will attempt to push through one of the Senate bills attempting to legalize warrantless wiretapping. That bill, if passed, would likely be placed into conference with H 5825, potentially yielding yet another White House-drafted piece of legislation, sanctioning its own illegal acts.
This bill is related to S 3931, Senator Mitch McConnell's "Terrorist Surveillance Act of 2006."
Bill Number: S
Status: Read twice and referred to the Committee on Armed Services, 11/16/06.
Introduced by Sen. Christopher Dodd (D-CT), the bill seeks to undo some of the damage inflicted by the Military Commissions Act (MCA). The bill would restore habeas corpus for detainees. It would also narrow the definition of unlawful enemy combatant, and prohibit the use of torture or coercion. And it would establish congressional and judicial review over Presidential interpretations of the Geneva Conventions.
Unfortunately, S 4060 misses fixing the MCA in three important ways:
- Allows "conspiracy" as a war crime. The Bush Administration inserted "conspiracy" as a war crimes charge, enabling the U.S. government to charge peripherally-involved individuals as terrorists, potentially using the death penalty as punishment. This enables the U.S. government to boast success in prosecuting the "war on terror," because it will be able to accuse, try and convict a large number of individuals on the one-size-fits-all charge of conspiracy. "Conspiracy" has never been used as a war crimes charge before, and should be removed from the Military Commissions Act.
- Allows hearsay evidence. Though Dodd takes care to allow a judge to exclude hearsay evidence they deem to be unreliable, the permission of hearsay evidence breaches fundamental protections for those accused of terrorism crimes.
- Allows individuals to be detained indefinitely without trial. Though Dodd intends this to be the exception rather than the rule, it is unconscionable for a nation to write laws that accept this eventuality under any circumstances.
Bill Number: S
Status: Read once on December 5, 2006.
Introduced by Sen. Arlen Specter (R-PA), the bill seeks to undo only one provision in the Military Commissions Act. The bill would restore habeas corpus for detainees.
Unfortunately, S 4081 fails to fix any of the other rights-abolishing provisions in the MCA.
Bill Number: S.
Status: Introduced March 13, 2006 referred to Committee Judiciary and hearings were held on March 31, 2006.
Introduced by Sen. Russell Feingold (D-WI) declares that the U.S. Senate censures George W. Bush, President of the United States, and condemns: (1) his unlawful authorization of wiretaps of Americans within the United States without obtaining the court orders required by the Foreign Intelligence Surveillance Act of 1978 (FISA); (2) his failure to inform the full congressional intelligence committees as required by law; and (3) his efforts to mislead the American people about the authorities relied upon by his Administration to conduct wiretaps and about the legality of the program.
Bill Number: H.Res
Status: Introduced May 25, 2006, placed on the House Calendar on June 26, 2006, Calendar No. 204
Introduced by Rep. Maurice D. Hinchey (D-NY) requesting the President and directing the Secretary of Defense and the Attorney General to transmit to the House of Representatives not later than 14 days after the date of the adoption of this resolution, documents relating to the termination of the Department of Justice's Office of Professional Responsibility's investigation of the involvement of Department of Justice personnel in the creation and administration of the National Security Agency's warrantless surveillance program, including documents relating to Office of Professional Responsibility's request for and denial of security clearances.
Bill Number: H.R.
Status: Introduced May 17, 2006, approved by the House Judiciary Committee on June 21, 2006, and placed on the House Calendar on June 23, Calendar No. 203
Introduced by Rep. Robert Wexler (D-FL) requesting the President and directing the Attorney General to submit to the House of Representatives all documents in the possession of the President and the Attorney General relating to requests made by the National Security Agency and other Federal agencies to telephone service providers requesting access to telephone communications records of persons in the United States and communications originating and terminating within the United States without a warrant.
Bill Number: S.3774
Status: Introduced August 2, 2006 and referred to the Judiciary Committee
Introduced by Senator Christopher Bond (R-MO), S.3374 would criminalize unauthorized disclosure of classified information. Bond's bill would enable the Executive Branch to prosecute individuals who disclosed government secrets without needing to prove that such disclosures have damaged or will damage national security. This bill has 14 co-sponsors. Previously Senator Richard Shelby sponsored H.R. 4392, the"Intelligence Authorization Act for Fiscal Year 200", which provides similar "anti-leak legilation", however, due to concerns of violating the first amendment the bill was vetoed by President Clinton.
Bill Number: S.
Status: Read twice and referred to Committee on Homeland Security and Governmental Affairs on February 14, 2006. On March 28, 2006 the Committee on Homeland Security and Governmental Affairs referred to the Subcommittee on Oversight of Government management, the Federal Workforce and the District of Columbia.
The bill, sponsored by Senator Frank Lautenberg (D-NJ), provides new protections for whistleblowers, allows new ways to pursue grievances, and holds those who retaliate against whistleblowers accountable. It has no co-sponsors.
Bill Number: H.R.
Status: Referred to Subcommittee on Readiness on March 22, 2006 then on May 1, 2006 referred to the House Subcommittee on Employer-Employee relationships.
Co-sponsored by Rep. Edward Markey (D-MA) and Rep. Carolyn Maloney (D-NY), this legislation has 11 co-sponsors. It would provide protections to government and private sector employees who are retaliated against for reporting flaws in national or homeland security, public health and safety, or waste, fraud and mismanagement of public funds.
Bill Number: S.
Status: Referred to the Senate Judiciary Committee on September 21, 2005
Introduced by Sen. Patrick Leahy (D-VT), this bill has no co-sponsors. It would provide safeguards for material witness detentions. It would curtail the use of the material witness law to hold people suspected of plotting terrorist acts.
Bill Number: H.R.
Status: Passed in House on December 16, 2005
Referred to Senate Judiciary Committee on January 27, 2006
The bill, cosponsored by Senators Sam Brownback (R-KS), Lindsey Graham (R-SC), Chuck Hagel (R-NE), Edward Kennedy (D-MA), Mel Martinez (R-FL), and John McCain (R-AZ), would change federal employment rules by requiring all workers in the U.S. to obtain a federal agency’s permission to work. All employers would be required to participate in a national employment eligibility verification program (an expansion of the "Basic Pilot" program in current law), including using an Internet-based system to check the names and social security numbers of all employees -- citizens and non-citizen alike -- against a Department of Homeland Security database. The legislation gives certain immigration officials broad authority to ignore due process and expel individuals suspected of being in the U.S. without authorization, further militarizes the border and expands mandatory detention rules to apply to many non-citizens arriving at a port of entry or even far from the border.
Bill Number: S.
Status: Passed in Senate on May 25, 2006
The Senate passed the Comprehensive Immigration Reform Act of 2006, a bill authored by Chairman Arlen Specter (R-PA) by a vote of 62-36. Many provisions of the bill would expand deeply flawed policies that have seriously eroded civil liberties, including provisions that would lessen or eliminate due process and would harm individual privacy. It would further erode the basic rights of immigrants to judicial review, even by the constitutionally-guaranteed writ of habeas corpus.
The Senate bill also proposes to direct all immigration appeals to the U. S. Court of Appeals, which would undermine the rights of immigrants to judicial review. The government would be given extraordinary powers to detain non-citizens indefinitely without meaningful review under the Senate bill.