Author's Note | Since I wrote this editorial on Wednesday, the House of Representatives passed the REAL ID Act of 2005 Thursday. The vote, 261-161, was largely along party lines. The substance of this bill is likely to be tacked on to emergency "must pass" spending legislation, such as the Iraq war appropriation or tsunami relief bill. It will likely face a contentious battle in the Senate. - mc/to
Lady Liberty Under Attack
By Marjorie Cohn
t r u t h o u t | Perspective
Wednesday 09 February 2005
Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me.
I lift my lamp beside the golden door.
- Emma Lazarus, The New Colossus,
Quoted on base of Statue of Liberty
The House of Representatives today is debating the REAL ID Act of 2005 (HR 418). This bill threatens the very principles upon which this country was founded. It resurrects several anti-immigrant and anti-refugee provisions dropped from the final version of the "Intelligence Reform and Terrorism Prevention Act of 2004" in December 2004 due to widespread opposition.
Although purporting to enhance our nation's security, the REAL ID Act does absolutely nothing to make us safer. Instead, it targets the world's most vulnerable group - refugees fleeing persecution, including torture, rape and other atrocities.
Under section 208 of the US Immigration and Nationality Act, a refugee may be granted asylum if she has been persecuted or has a well-founded fear of persecution if she is returned to her home country. The persecution must be based on her race, religion, nationality, membership in a particular social group, or political opinion.
The REAL ID Act would require a refugee to prove her persecutor's "central" reasons for harming her - essentially penalizing a refugee who cannot prove with unrealistic precision what is going on in her persecutor's mind. It would give an immigration officer or judge broad leeway to deny a refugee asylum based on her perceived "demeanor" and alleged "statements" taken in unreliable circumstances, ignoring the fact that survivors of rape or torture, suffering from post traumatic stress disorder, may appear lacking in emotion or have difficulty making eye contact.
This bill will allow the wives and children of victims of extortion by alleged terrorists to be deported or barred from asylum based on overly broad definitions of what constitutes "supporting" terrorism. It would require that non-citizens meet a virtually impossible burden of proof to convince the government they did not knowingly support terrorism. Current immigration law makes foreign nationals inadmissible if they knew or should have known that the support they provided to a group would further the group's terrorist activity.
Under the REAL ID Act, a person would be deportable unless she could show "by clear and convincing evidence" that she did not know the group she was supporting was a terrorist organization under the law's extremely broad definition of that term. Since it is almost impossible to prove lack of knowledge, this standard would make it nearly impossible for an innocent immigrant to defend herself against deportation. This would, for example, allow the deportation of an immigrant who donated money for tsunami disaster relief in the Aceh province of Indonesia, not knowing the organization that received funds had a subgroup the Department of Homeland Security considered terrorist.
The REAL ID Act would also establish extensive federal control over state issuance of driver's licenses and state identification cards. If someone is undocumented or has overstayed a visa, he could not get a license or identification card under this scheme. It would undermine the states' efforts to create a driver's license system that assures all drivers are certified to drive, are insured, and are carrying valid licenses. This would drive undocumented people further into the shadows and undermine rather than improve security.
One of the most heinous parts of this bill is section 102, which would empower the Secretary of Homeland Security to suspend any and all laws in order to ensure the "expeditious" construction of a set of barriers and roads to keep illegal immigrants out. Then, it prohibits any judicial review of the Secretary's decision to suspend any law.
What laws could the Secretary of Homeland Security suspend? Environmental and labor laws, such as the Endangered Species Act, National Forest Management Act, and the Davis-Bacon prevailing wage laws and the right to organize and bargain collectively. Defenders of Wildlife warns that section 102 could be used to waive all laws in all areas in the vicinity of the US borders with both Mexico and Canada, nearly 7,500 miles in total. Many of our borders run near or through national parks, forests and monuments, wildlife refuges, wilderness areas and other environmentally sensitive areas.
The American Immigration Lawyers Association cautions that the REAL ID Act will be detrimental to the welfare of the country in that it will actually increase the number of uninsured, unlicensed drivers; limit the critical law enforcement utility of Department of Motor Vehicle databases; make it difficult for people fleeing persecution to obtain refugee status in the United States; undermine free speech and association; and waste valuable resources, both economic and environmental, on false border security solutions.
Recall that the USA Patriot Act, which resurrected several formerly rejected anti-civil liberties provisions, was rammed through a timid Congress in the month following September 11, 2001. Likewise, the substance of the REAL ID Act will be tacked on to a "must pass" emergency spending bill, such as the financing of the Iraq war or tsunami relief, making it much more difficult for the Democrats to block its odious provisions.
The REAL ID Act of 2005 is opposed by myriad religious and civil liberties organizations, including the Anti-Defamation League, Episcopal Migration Ministries, Lutheran Immigration and Refugee Service, American Immigration Lawyers Association, Amnesty International USA, Center for Victims of Torture, Kurdish Human Rights Watch, Inc., National Council of La Raza, and Human Rights First.
Bush's second term will be characterized by this and other attacks on our liberty and security. It is up to us to challenge these assaults or we will all face the wrath of what is increasingly becoming a police state.
Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.
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