The PATRIOT ACT PART III.....IV.....V.....COMING TO YOUR NEIGHBORHOOD SOOOOOON!
Justice Dept. Drafts Sweeping Expansion of
Anti-Terrorism Act
Center Publishes Secret Draft of ‘Patriot II’ Legislation
By Charles Lewis and Adam Mayle
(WASHINGTON, Feb. 7, 2003) -- The Bush Administration is preparing a bold,
comprehensive sequel to the USA Patriot Act passed in the wake of September
11, 2001, which will give the government broad, sweeping new powers to
increase domestic intelligence-gathering, surveillance and law enforcement
prerogatives, and simultaneously decrease judicial review and public access to
information.
The Center for Public Integrity
has obtained a draft, dated
January 9, 2003, of this
previously undisclosed
legislation and is making it
available in full text (12 MB).
The bill, drafted by the staff of
Attorney General John Ashcroft
and entitled the Domestic
Security Enhancement Act of
2003, has not been officially
released by the Department of
Justice, although rumors of its
development have circulated
around the Capitol for the last few months under the name of “the Patriot Act II” in
legislative parlance.
“We haven’t heard anything from the Justice Department on updating the Patriot
Act,” House Judiciary Committee spokesman Jeff Lungren told the Center. “They
haven’t shared their thoughts on that. Obviously, we'd be interested, but we
haven’t heard anything at this point.”
Senior members of the Senate
Judiciary Committee minority staff
have inquired about Patriot II for
months and have been told as
recently as this week that there is no
such legislation being planned.
Mark Corallo, deputy director of
Justice’s Office of Public Affairs, told the Center his office was unaware
of the draft. “I have heard people talking about revising the Patriot Act,
we are looking to work on things the way we would do with any law,” he
said. “We may work to make modifications to protect Americans,” he
added. When told that the Center had a copy of the draft legislation, he
said, “This is all news to me. I have never heard of this.”
After the Center posted this story, Barbara Comstock, director of public
affairs for the Justice Dept., released a statement saying that,
"Department staff have not presented any final proposals to either the
Attorney General or the White House. It would be premature to
speculate on any future decisions, particularly ideas or proposals that are
still being discussed at staff levels."
An Office of Legislative Affairs
“control sheet” that was obtained
by the PBS program "Now With Bill
Moyers" seems to indicate that a
copy of the bill was sent to Speaker
of the House Dennis Hastert and
Vice President Richard Cheney on Jan. 10, 2003. “Attached for your
review and comment is a draft legislative proposal entitled the
‘Domestice Security Enhancement Act of 2003,’” the memo, sent from
“OLP” or Office of Legal Policy, says.
Comstock later told the Center that the draft "is an early discussion draft
and it has not been sent to either the Vice President or the Speaker of the
House."
Dr. David Cole, Georgetown University Law professor and author of
Terrorism and the Constitution, reviewed the draft legislation at the
request of the Center, and said that the legislation “raises a lot of serious
concerns. It’s troubling that they have gotten this far along and they’ve
been telling people there is nothing in the works.” This proposed law, he
added, “would radically expand law enforcement and intelligence
gathering authorities, reduce or eliminate judicial oversight over
surveillance, authorize secret arrests, create a DNA database based on
unchecked executive ‘suspicion,’ create new death penalties, and even
seek to take American citizenship away from persons who belong to or
support disfavored political groups.”
Some of the key provision of the Domestic Security Enhancement Act of
2003 include:
Section 201, “Prohibition of Disclosure of Terrorism Investigation
Detainee Information”: Safeguarding the dissemination of information
related to national security has been a hallmark of Ashcroft’s first two
years in office, and the Domestic Security Enhancement Act of 2003
follows in the footsteps of his October 2001 directive to carefully
consider such interest when granting Freedom of Information Act
requests. While the October memo simply encouraged FOIA officers to
take national security, “protecting sensitive business information and, not
least, preserving personal privacy” into account while deciding on
requests, the proposed legislation would enhance the department’s ability
to deny releasing material on suspected terrorists in government custody
through FOIA.
Section 202, “Distribution of ‘Worst Case Scenario’ Information”:
This would introduce new FOIA restrictions with regard to the
Environmental Protection Agency. As provided for in the Clean Air Act,
the EPA requires private companies that use potentially dangerous
chemicals must produce a “worst case scenario” report detailing the
effect that the release of these controlled substances would have on the
surrounding community. Section 202 of this Act would, however, restrict
FOIA requests to these reports, which the bill’s drafters refer to as “a
roadmap for terrorists.” By reducing public access to “read-only”
methods for only those persons “who live and work in the geographical
area likely to be affected by a worst-case scenario,” this subtitle would
obfuscate an established level of transparency between private industry
and the public.
Section 301-306, “Terrorist Identification Database”: These
sections would authorize creation of a DNA database on “suspected
terrorists,” expansively defined to include association with suspected
terrorist groups, and noncitizens suspected of certain crimes or of having
supported any group designated as terrorist.
Section 312, “Appropriate Remedies with Respect to Law
Enforcement Surveillance Activities”: This section would terminate
all state law enforcement consent decrees before Sept. 11, 2001, not
related to racial profiling or other civil rights violations, that limit such
agencies from gathering information about individuals and organizations.
The authors of this statute claim that these consent orders, which were
passed as a result of police spying abuses, could impede current
terrorism investigations. It would also place substantial restrictions on
future court injunctions.
Section 405, “Presumption for Pretrial Detention in Cases
Involving Terrorism”: While many people charged with drug offenses
punishable by prison terms of 10 years or more are held before their trial
without bail, this provision would create a comparable statute for those
suspected of terrorist activity. The reasons for presumptively holding
suspected terrorists before trial, the Justice Department summary memo
states, are clear. “This presumption is warranted because of the
unparalleled magnitude of the danger to the United States and its people
posed by acts of terrorism, and because terrorism is typically engaged in
by groups – many with international connections – that are often in a
position to help their members flee or go into hiding.”
Section 501, “Expatriation of Terrorists”: This provision, the drafters
say, would establish that an American citizen could be expatriated “if,
with the intent to relinquish his nationality, he becomes a member of, or
provides material support to, a group that the United Stated has
designated as a ‘terrorist organization’.” But whereas a citizen formerly
had to state his intent to relinquish his citizenship, the new law affirms that
his intent can be “inferred from conduct.” Thus, engaging in the lawful
activities of a group designated as a “terrorist organization” by the
Attorney General could be presumptive grounds for expatriation.
The Domestic Security Enhancement Act is the latest development in an
18-month trend in which the Bush Administration has sought expanded
powers and responsibilities for law enforcement bodies to help counter
the threat of terrorism.
The USA Patriot Act, signed into law by President Bush on Oct. 26,
2001, gave law enforcement officials broader authority to conduct
electronic surveillance and wiretaps, and gives the president the authority,
when the nation is under attack, to confiscate any property within U.S.
jurisdiction of anyone believed to be engaging in such attacks. The
measure also tightened oversight of financial activities to prevent money
laundering and diminish bank secrecy in an effort to disrupt terrorist
finances.
It also changed provisions of Foreign Intelligence Surveillance Act, which
was passed in 1978 during the Cold War. FISA established a different
standard of government oversight and judicial review for “foreign
intelligence” surveillance than that applied to traditional domestic law
enforcement surveillance.
The USA Patriot Act allowed the Federal Bureau of Investigation to
share information gathered in terrorism investigations under the “foreign
intelligence” standard with local law enforcement agencies, in essence
nullifying the higher standard of oversight that applied to domestic
investigations. The USA Patriot Act also amended FISA to permit
surveillance under the less rigorous standard whenever “foreign
intelligence” was a “significant purpose” rather than the “primary
purpose” of an investigation.
The draft legislation goes further in that direction. “In the [USA Patriot
Act] we have to break down the wall of foreign intelligence and law
enforcement,” Cole said. “Now they want to break down the wall
between international terrorism and domestic terrorism.”
In an Oct. 9, 2002, hearing of the Senate Judiciary Subcommittee on
Technology, Terrorism, and Government Information, Deputy Assistant
Attorney General Alice Fisher testified that Justice had been, “looking at
potential proposals on following up on the PATRIOT Act for new tools
and we have also been working with different agencies within the
government and they are still studying that and hopefully we will continue
to work with this committee in the future on new tools that we believe are
necessary in the war on terrorism.”
Asked by Sen. Russ Feingold (D-Wis.) whether she could inform the
committee of what specific areas Justice was looking at, Fisher replied,
“At this point I can’t, I’m sorry. They're studying a lot of different ideas
and a lot of different tools that follow up on information sharing and other
aspects.”
Assistant Attorney General for Legal Policy Viet Dinh, who was the
principal author of the first Patriot Act, told Legal Times last October
that there was “an ongoing process to continue evaluating and
re-evaluating authorities we have with respect to counterterrorism,” but
declined to say whether a new bill was forthcoming.
Former FBI Director William Sessions, who urged caution while
Congress considered the USA Patriot Act, did not want to enter the fray
concerning a possible successor bill.
"I hate to jump into it, because it's a very delicate thing," Sessions told the
Center, without acknowledging whether he knew of any proposed
additions or revisions to the additional Patriot bill.
When the first bill was nearing passage in the Congress in late 2001,
however, Sessions told Internet site NewsMax.Com that the balance
between civil liberties and sufficient intelligence gathering was a difficult
one. “First of all, the Attorney General has to justify fully what he’s
asking for,” Sessions, who served presidents Reagan and George H.W.
Bush as FBI Director from 1987 until 1993, said at the time. “We need
to be sure that we provide an effective means to deal with criminality.” At
the same time, he said, “we need to be sure that we are mindful of the
Constitution, mindful of privacy considerations, but also meet the
technological needs we have” to gather intelligence.
Cole found it disturbing that there have been no consultations with
Congress on the draft legislation. “It raises a lot of serious concerns and
is troubling as a generic matter that they have gotten this far along and tell
people that there is nothing in the works. What that suggests is that
they’re waiting for a propitious time to introduce it, which might well be
when a war is begun. At that time there would be less opportunity for
discussion and they’ll have a much stronger hand in saying that they need
these right away.”
CC |
