October 11, 2000 American Civil Liberties Union
Federation of American Scientists
Lawyers Committee for Human Rights
World Organization Against Torture, USA
Hon. Porter Goss, Chairman
Hon. Julian Dixon, Ranking Member
Permanent Select Committee on Intelligence
H-405 Capitol Building
Washington, D.C. 20515-6415Re: Intelligence Authorization Act, H.R. 4392, and Treaty "Obligations"
Dear Reps. Goss and Dixon:
We are writing to ask that you reject Section 305 of the Senate-passed version of the Intelligence Authorization Act for FY 2001, H.R. 4392. Section 305 would legalize "authorized intelligence activity" that is illegal under the terms of any legislation adopted in the future to implement a treaty, unless the implementing legislation indicates otherwise. In essence, it puts intelligence activity above the law. Because this sweeping change has been the subject of no public hearings and virtually no public debate, and because this provision would sanction lawless activity, we urge you to reject it.
Under Section 305, "authorized intelligence activity" that violates any law enacted in the future to implement a treaty or other international agreement would be legal, unless the implementing legislation indicated otherwise. Legislation implementing international treaties prohibits some of the most heinous conduct imaginable. Treaties into which the United States has or will soon enter proscribe genocide, bribery, racial discrimination, hostage taking and hijacking.
For example, the legislation implementing the Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Punishment establishes that it is the policy of the United States not to expel, extradite or effect the involuntary return of any person to a country in which there are substantial grounds for believing that the person would be in danger of being tortured. This policy applies regardless of whether the person who might be tortured is in the United States. Section 2242 of Pub. Law 105-277, 112 Stat. 2681-822 (1998). Had section 305 been law when Congress considered the legislation implementing the Convention Against Torture, it would be legal under the statute for a CIA agent acting pursuant to an "authorized intelligence activity" to return a person to a place where they would be tortured. This would be the case unless a member of Congress successfully slipped into the implementing legislation a provision indicating that it applied to intelligence activity as well.
The very limited Senate debate on this provision indicates that whether a particular intelligence activity that violates a law implementing a treaty is "authorized" is unclear. For example, it appears that the authorization need not be written and need not be issued specifically with respect to the conduct in question. Rather, as Senator Shelby put it, "Individual actions might be authorized through general written policies, rather than case-specific authorizations." See colloquy between Senators Biden and Shelby, 146 Cong. Rec. page S9686-7, October 3, 2000. This is an invitation for abuse of authority to evade a law by which every other government official must abide.
There can be no excuse for giving intelligence agencies a license to ignore the law, including laws that implement treaty obligations. To create such a blanket exception for "authorized intelligence activities" is to invite other countries that undertake treaty obligations to except these and other activities from the requirements of the treaty. This provision would ensure that there is no public debate as to whether there should be an "intelligence exception" to a future treaty obligation proscribing objectionable conduct. We urge you to reject it.
Sincerely,
Laura W. Murphy, Director
American Civil Liberties Union
Washington National OfficeSteven Aftergood, Project Director
Federation of American ScientistsElisa Massiminoe, Director
Lawyers Committee for Human RightsMorton Sklar, Director
World Organization Against Torture, USA