Outside the Beltway

Deporting Terror Suspects to Torture States

James Joyner · Friday, October 1, 2004 · 2 comments

Plan Would Let U.S. Deport Suspects to Nations That Might Torture Them (Dana Priest and Charles Babington, WaPo A01)

The Bush administration is supporting a provision in the House leadership’s intelligence reform bill that would allow U.S. authorities to deport certain foreigners to countries where they are likely to be tortured or abused, an action prohibited by the international laws against torture the United States signed 20 years ago. The provision, part of the massive bill introduced Friday by House Speaker J. Dennis Hastert (R-Ill.), would apply to non-U.S. citizens who are suspected of having links to terrorist organizations but have not been tried on or convicted of any charges. Democrats tried to strike the provision in a daylong House Judiciary Committee meeting, but it survived on a party-line vote.

The provision, human rights advocates said, contradicts pledges President Bush made after the Abu Ghraib prisoner-abuse scandal erupted this spring that the United States would stand behind the U.N. Convention Against Torture. Hastert spokesman John Feehery said the Justice Department “really wants and supports” the provision. Justice Department spokesman Mark Corallo said, “We can’t comment on any specific provision, but we support those provisions that will better secure our borders and protect the American people from terrorists.” The provision is one of several items in the bill that Democrats say are unrelated to intelligence reform but Republicans say are important tools for fighting terrorists. The Senate is debating its own intelligence reform bill that does not include the provision, and the House bill is being marked up in several committees.

Human rights groups and members of Congress opposed to the provision say it could result in the torture of hundreds of people now held in the United States who could be sent to such countries as Egypt, Saudi Arabia, Yemen, Jordan and Pakistan, all of which have dubious human rights records. Supporters say the measure would provide a much-needed change to U.S. laws.
“Our laws are not up to date with the war we’re fighting,” Feehery said. In many cases, he said, the Justice Department “can’t keep [terror suspects] in detention, they can’t convict them, they don’t want to try them. . . . If you can’t detain them indefinitely, you sure don’t want them in America.”

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Under the Hastert bill, U.S. authorities could send an immigrant to any country, regardless of the likelihood of torture or abuse. The measure would shift to the deportee the burden of proving “by clear and convincing evidence that he or she would be tortured” — a burden that human rights activists say is impossible to satisfy. It would bar a U.S. court from reviewing the regulations, which would fall under the secretary of homeland security. The provision would apply retroactively, to people now in detention and those who may have already been secretly deported under classified procedures to countries with well-documented histories of torture and human rights violations. It also would allow U.S. authorities to deport foreigners convicted of any felony or suspected of having links to terrorist groups to any country — even somewhere that is not a person’s home country or place of birth, contrary to current practice. The CIA already has such authority, under a secret presidential finding first signed by President Bill Clinton and expanded by Bush after Sept. 11, 2001. The CIA has taken an unknown number of suspected terrorists apprehended abroad to third countries for interrogation.

The bill was also apparently put together rather quickly without much opportunity even for other Republicans to offer amendments.

The nature of the war on terrorism is well illustrated by this situation. While it’s true that it is not merely a law enforcement mission, it’s not a regular military war, either. It’s quite possible that fighting it successfully requires providing something less than the full extent of U.S. civil liberty protection to foreign nationals suspected of terrorist activity. Keeping them locked up indefinitely is potentially worse than deporting them. And most of them are likely to hail from countries that routinely make use of torture.

My strong suspicion is that this is academic, anyway, as it is unlikely this measure will make it through the Senate, where a minority of 40% is sufficient to kill it.