Thursday, December 9, 2004

Lost in the flood of attention focused on the defeats suffered by House conservatives — most notably Judiciary Committee Chairman James Sensenbrenner — in the recently passed intelligence bill are some key security-related provisions that made the final cut, despite being initially ignored or opposed by the Senate.

While it’s true that Mr. Sensenbrenner lost his bid to close security loopholes that could be exploited — particularly drivers licenses for illegal aliens that could be used to board flights — he was perhaps the biggest winner in terms of ensuring the inclusion of controversial clauses in the bipartisan bill.

Ironically, the steely Wisconsin Republican scored several significant victories precisely because his even more controversial immigration provisions dominated the Democrats’ focus.

Notes one veteran Capitol Hill aide: “We wouldn’t have won the criminal law changes if the Democrats didn’t have to direct all their fire at the immigration stuff.”

What did Mr. Sensenbrenner win? Plenty.

Over the past year and a half, the 9th Circuit Court of Appeals threw out as “unconstitutionally vague” the federal definition of what constitutes “material support” for terrorist organizations. In conjunction with the Department of Justice, the Judiciary Committee drafted a new definition that would still have teeth, while also addressing the court’s concerns. Democrats, however, opposed the new language.

Another victory was the so-called lone wolf provision. Under current law, tracking terrorists who are believed to be acting separate from a terrorist organization — or as a lone wolf — must be pursued and investigated under criminal, not counterterrorism, law. This places often-severe hurdles in the path of investigators, with a silly double standard of affording civil liberties protections only to suspected terrorists who appear to be acting alone. Yet Democrats opposed this reform.

The Judiciary chairman also won passage of stringent mandatory-minimum sentences for certain terrorism-related convictions. The production, construction, import, export, possession or use of dirty bombs, nukes, surface-to-air missiles and smallpox will now carry a statutory sentence of 25 years to life. If someone is killed, the penalty becomes either life in prison or a death sentence. Democrats opposed these mandatory minimums.

The new Sensenbrenner provisions will strengthen the positions of investigators and prosecutors alike in terrorism cases — yet they would have been deemed “too controversial” in final negotiations if the Democrats had not been forced to worry about his immigration proposals.

Less controversial House-authored provisions, which were nonetheless excluded from the original Senate bill, also were included in the final package.

Rep. Elton Gallegly, Republican of California, won on a number of fronts, especially on the so-called terrorist travel sections. Most important, though, was a change in the process for renewing the official designation of Foreign Terrorist Organizations (FTOs).

Every two years, the FBI, CIA, Justice Department, and the State Department must go through a lengthy and cumbersome process to renew the FTO designation of any terrorist group, including for the likes of al Qaeda and Hamas.

So, to free up thousands of man-hours of highly skilled and intensely valuable counterterrorism officials, the intelligence bill includes a Gallegly authored clause that changes the renewal period to every five years and significantly streamlines the process. FTO-designated groups can still petition to be dropped from the list — few ever have — but now the burden of proof is on them to show that they are not engaged in any forms of terrorism.

In order to help the State Department in its task of preventing terrorists from entering the United States, Mr. Gallegly successfully pushed an increase in consular officers by 150 each year and for beefed-up training in detection of fraudulent documents. Both measures had the support of Foggy Bottom.

One provision opposed by the State Department, though, was requiring that all nonimmigrant visa applications — meaning those for temporary travel to the United States — must be “reviewed and adjudicated by a consular officer.”

What now happens in many consulates and embassies is that although the visa may be physically stamped by a consular officer, most of the legwork is done by Foreign Service Nationals, local residents who work at the post. These workers pose grave security risks, particularly since their fraud is often punished by mere slaps on the wrist — if at all.

Though the media portrayed the final intelligence bill as a near-total loss for House conservatives, the supposedly defeated lawmakers know better. And though he didn’t get some of the border security measures he strongly supported, Mr. Sensenbrenner’s overall record would suggest that the Democrats only managed to throw him in the briar patch.

Joel Mowbray occasionally writes for The Washington Times.

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