Joel Mowbray

Lost in the flood of attention focused on the defeats suffered by House conservatives?most notably Judiciary Committee chairman Rep. James Sensenbrenner (R-WI)?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 true that Chairman 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 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 Ninth 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 normal 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 had to have worried about his border security proposals.

Joel Mowbray

Joel Mowbray, who got his start with, is an award-winning investigative journalist, nationally-syndicated columnist and author of Dangerous Diplomacy: How the State Department Threatens America's Security.

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