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Chapter 1: Open Government
The Department of Justice should rescind its October 12, 2001 memo relating to Freedom of Information. If it fails to do so, Congress should review the Administration’s new freedom of information policy with a view to restoring the public’s right to know and its access to government information through legislation.
Congress should amend pending legislation creating the new Department of Homeland Security to ensure that the Whistleblowers Protection Act applies to the new agency.
Chapter 2: The Right to Privacy
The Judiciary Committees of Congress should hold comprehensive oversight hearings in which they systematically examine each new law or expansion of Executive Branch power in the USA-PATRIOT Act. They should undertake a cost/benefit analysis of each provision. Among the points they should consider are these:
Is the law being used?
If not, why not?
Is it needed?
If it is being used, have any abuses of this new authority come to light?
The Department of Justice should develop effective internal oversight safeguards governing searches without prior notice under Section 213 of the USA- PATRIOT Act.
Congress should conduct regular oversight hearings to evaluate how Section 213 is being applied in practice, and to consider whether a sunset provision should be added.
Congress should also use its oversight authority to review the implementation of amendments to the Foreign Intelligence Surveillance Act (FISA), with a view towards providing additional safeguards against abuse of Executive discretion under the amended law.
Congress should include both an Office of Internal Affairs and an Office of Civil Rights and Civil Liberties Accountability in the new Department of Homeland Security.
When the President signs the law creating the Department of Homeland Security, he should stress the importance of protecting civil liberties and ensuring government accountability. He should spell out specific guidelines aimed at ensuring that these principles will be followed by this new department.
A recent decision by the Foreign Surveillance Intelligence Court imposes needed limits on Justice Department foreign intelligence searches on U.S. soil. Rather than appealing this decision, Attorney General Ashcroft should comply with the Court’s judgment.
In addition, Congress should use its oversight authority to keep a careful eye on how foreign intelligence surveillance is carried out. We know from prior history, in this country and elsewhere, that there is grave potential for abuse in this area. Congress also should establish a Commission on Privacy, Personal Liberty and Homeland Security within the new Department of Homeland Security.
Congress should also review recent amendments to FISA which expanded government police powers with respect to personal records, powers which now extend even to the purchase of books or library use. Congress should conduct public hearings in which it solicits the views of librarians, booksellers and other members of the public with a direct interest in these matters.
Similarly, Congress should review changes to FBI guidelines, announced by Attorney General Ashcroft in May, which permit much greater surveillance of domestic religious and political organizations. Congress should consider whether legislation is needed to limit executive authority in this area.
The Administration should abandon pursuit of Operation TIPS (The Terrorism Information and Prevention System). Bipartisan criticism of this initiative makes clear the wide public opposition to this proposal. It should be dropped immediately.
Chapter 3: Treatment of Immigrants, Refugees, and Minorities
The Department of Justice should release the names of all persons detained on immigration charges, provided those individuals consent to release of such information, to family, legal counsel or others with a legitimate interest. Information should include the date of arrest and place of detention.
The INS should permit legal service organizations access to visit detention facilities on a regular basis. Subject to reasonable security precautions, it should also allow independent monitoring groups access to visit these facilities.
The Department of Justice should provide all detainees with access to legal counsel of their choice and entitle them reasonable hours and secure locations in which to meet.
The Department of Justice should heed two federal District Court decisions (in Michigan and New Jersey) which held that immigration hearings should be open.
Congress should conduct a thorough review of provisions in the USA-PATRIOT Act relating to detention of non-citizens. Given the Administration’s rare use of this authority over the last year and the potential for abuse, we urge Congress to repeal these provisions when it reconvenes in January.
Under the USA-PATRIOT Act, and in subsequent regulations, like the one authorizing eavesdropping on lawyer-client conversations, the role of the courts has been severely limited. Until judicial oversight is restored, the Department of Justice should set up an internal review process, chaired by the Attorney General and including the Assistant Attorney General for Civil Rights, to help ensure that these new powers, among them prolonged detention in national security cases, are used only in cases that necessitate them.
The INS regulations on custody procedures (8 C.F.R. Section 287.3) and automatic stay authority (8 C.F.R. Section 3.19) should be immediately rescinded. At a minimum, the Department of Justice should instruct the INS to issue detailed guidelines governing the use of these regulations in order to prevent abuse.
Domestically, the United States should renew its commitment to supporting a vigorous program of refugee resettlement (incorporating necessary security safeguards) and a national asylum system which accords with the highest international standards. In particular, the exclusion clause in refugee law (designed to prevent those who have committed serious crimes from receiving asylum as refugees) must be applied in a way which recognizes its exceptional nature, ensures that genuine refugees and those requiring protection from torture are not endangered, and fosters accountability for serious crimes.
Chapter 4: The Security Detainees and the Criminal Justice System
The almost 600 detainees now held at the U.S. Naval base in Guantanamo Bay, Cuba are presumed to be prisoners of war and should be afforded all of the protections of international humanitarian law (particularly, the Geneva Conventions).
a. Should there be any doubt as to the entitlement to prisoner of war status of individuals acknowledging their participation in the hostilities in Afghanistan, an individualized “competent tribunal” should make the determination, as provided by the Third Geneva Convention and applicable U.S. military regulations.
b. Any individual claiming to be a noncombatant should be allowed the opportunity to prove that claim before such a competent tribunal, as well.
c. If the tribunal determines there is probable cause to believe a prisoner of war may have committed war crimes or other serious violations of international law, that person should be tried before a court martial, as required by the Third Geneva Convention.
d. Any individual found by a competent tribunal not to be a prisoner of war is a civilian. Subject to the United States’ obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, all civilians should be repatriated unless the tribunal finds probable cause to believe that a civilian may have committed a war crime or other serious violation of international law. If the tribunal finds such probable cause, the individual should be brought to trial in either a regular civilian criminal court, a regular court martial, or in another tribunal which accords the defendant at least the minimum rights and protections mandated by article 146 of the Fourth Geneva Convention.
The administration should develop a set of criteria for determining when hostilities have ended and the prisoners of war may be released (unless there are or are contemplated to be criminal proceedings brought against them). The administration should consult closely with Congress in preparing these criteria, and should take guidance from the expertise of the International Committee of the Red Cross.
Arrest and detention without trial in the United States of U.S. citizens or other U.S. residents as “enemy combatants” is a violation of U.S. constitutional law. If these individuals have committed crimes, they should be prosecuted under U.S. law. U.S. citizens or others with close residential links to the United States who are apprehended within a war zone may be treated as prisoners of war, as described above, but must also be accorded the right to habeas corpus review of the lawfulness of their detention.
We commend the Department of Justice for its reliance on the criminal justice system in the recent indictments of five suspects in Detroit and Seattle in cases relating to national security. The administration should follow this approach as it pursues other similar cases.
The Military Order authorizing military commissions should be rescinded. The administration has wisely declined to use this authority so far. But the Order creates standing authority for the creation of tribunals that do not satisfy fair trial standards and invites imitation by other governments.
Chapter 5: The United States and International Human Rights Protection
The State Department should ensure that its annual Country Reports on Human Rights Practices, which must be submitted to Congress in February, include a detailed and comprehensive analysis of the human rights situations in all countries, including those allied with the United States in its international struggle against al Qaeda. Congress intended the Country Reports to provide the unvarnished truth about human rights abuses around the world, and the State Department should resist any temptation to excuse or overlook human rights failings of allied governments.
The Administration should rebuke in the strongest terms governments – both allies and others – who seek to recast their repressive policies as efforts to support the global anti-terrorism effort. The Administration should use the opportunity of the next meeting of the U.N. Human Rights Commission in Geneva to make statements to this effect.
The Administration should issue a clear and unequivocal statement that it intends to comply with its obligations under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and will not extradite, expel or otherwise return any individual to a place where there is a substantial likelihood of torture.
Internationally, the United States should encourage other States to ensure that refugee protection procedures and provisions for extradition, expulsion, and removal of non-citizens comply with both the principle of non-refoulement and the obligation to prosecute serious criminals domestically where possible. The United States should continue to emphasize that the effort to combat terrorism cannot be allowed to diminish the right of refugees to seek and enjoy protection from persecution.
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