WHAT PATRIOT II PROPOSES TO DO
The Bush Administration's draft Domestic Security Enhancement Act of 2003 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. Here are a few highlights:
1. Secret Arrests. Section 201 would authorize secret arrests, overturning a federal court decision requiring the government to disclose the identity of persons it has detained in the September 11 investigation. This provision would mandate that all arrests in connection with "international terrorism" investigations be secret until an indictment is filed. Never before in our history have we permitted secret arrests.
2. Ending Consent Decrees Against Illegal Police Spying. Section 312 would automatically terminate any consent decree governing police spying abuse that was entered before September 11, 2001, no matter what the basis of that decree. It would essentially eliminate consent decrees for the future with respect to police spying, and place substantial restrictions on judicial injunctions.
3. Unchecked Deportation Authority. Section 503 would give the Attorney General unchecked power to deport foreign nationals, including lawful permanent resident aliens, whenever he determines that their presence is inconsistent with our "national security," which is defined to include "economic interests" or "foreign policy." The D.C. Circuit has already held that courts cannot review what actions violate our "foreign policy," and therefore this would give the Attorney General license to deport any foreign national of his choosing.
4. Stripping Citizenship for Political Associations. Section 501 would seek to strip citizenship from persons for their political associations. It would provide that even activity that is currently legal to engage in - such as belonging to or supporting the lawful activities of a group designated "terrorist" by the Attorney General - would be presumptive grounds for losing one's citizenship.
5. Bypassing Judicial Oversight. Section 103 would authorize the Attorney General to bypass the courts altogether for Foreign Intelligence Surveillance Act searches and wiretaps whenever Congress has authorized the use of force. Section 128 would allow government to bypass grand juries for subpoenas in terrorism investigations. Section 126 allows government to bypass courts or grand juries in seeking access to credit reports.
6. DNA Database for "Suspected" Terrorists. Section 301-306 would authorize creation of a DNA database on "suspected terrorists," expansively defined to include mere association with suspected terrorist groups, and noncitizens suspected of everyday crimes or of having supported any group designated as terrorist.
7. Eliminating Privacy Protections for U.S. Citizens. Section 107 would eliminate protections in the current FISA law for U.S. persons (citizens and lawful permanent residents). It would allow the government to get pen registers on U.S. persons for any foreign intelligence investigation, without regard to any criminal or terrorist nexus.
8. Collapsing Distinction Between Domestic and International Terrorism Investigations. Section 121 eliminates the distinction between international terrorism and domestic terrorism. The reason for that distinction has been that domestic terrorism is a crime, and should be treated as a criminal matter, while international terrorism is both a crime and a matter of foreign intelligence. As a result, international terrorism investigations have used broader surveillance under looser restrictions than domestic terrorism investigations, which are subject to the traditional restrictions that apply to all criminal investigations.. This bill would eliminate that distinction, treating wholly domestic criminal acts and conspiracies as subject to the same authorities that extend to foreign intelligence gathering.
9. Access to Credit Reports Section 126 would give federal law enforcement authorities access to credit reports on the same basis as private companies. Historically, law enforcement access has been more limited, because of concerns that law enforcement is more susceptible to serious abuse than private companies. This provision would eliminate that distinction.
10. Secrecy. Section 128 and 206 impose gag orders on persons subjected to terrorism investigations. Section 204 would presumptively give the government authority to make secret presentations to courts in criminal cases related to the Classified Information Procedures Act.
11. New Death Penalties. Section 411 creates new death penalties for certain terrorist offenses.
12. Extradition Without Treaty. Section 322 authorizes extradition even where there is no treaty authorizing and setting criteria for extradition.
13. Expedited Removal for "Criminal Aliens." Section 504 has nothing to do with terrorism whatsoever. It creates an "expedited removal" process, radically limiting judicial review, for any foreign national convicted of a wide range of minor and major crimes, irrespective of when the crime was committed. This simply exacerbates the already harsh immigration laws governing those who have committed a crime, and seeks to deprive them of any meaningful judicial review, without any connection to terrorism or national security.
For more complete information on this bill and for a download of the text goto http://www.publicintegrity.org/dtaweb/report.asp?ReportID=502&L1=10&L2=10&L3
(WASHINGTON, Feb. 7, 2003) -- Washington Post
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 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." that was obtained by the PBS program "Now With Bill Moyers"
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 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."
Patriot Act's Big Brother
by David Cole, The Nation
In early February, the Center for Public Integrity disclosed a leaked draft of the Bush Administration's next round in the war on terrorism--the Domestic Security Enhancement Act (DSEA).
The draft legislation, stamped Confidential and dated January 9, 2003, appears to be in final form but has not yet been introduced in Congress. Presumably the Administration had determined that the timing would be more propitious for passage--meaning less propitious for reasoned debate--after we go to war with Iraq. But it is one thing to play politics with the timing of a farm bill; it is another matter to do so with a bill that would radically alter our rights and freedoms. If the Patriot Act was so named to imply that those who question its sweeping new powers of surveillance, detention and prosecution are traitors, the DSEA takes that theme one giant step further.
It provides that any citizen, even native-born, who supports even the lawful activities of an organization the executive branch deems "terrorist" is presumptively stripped of his or her citizenship. To date, the "war on terrorism" has largely been directed at noncitizens, especially Arabs and Muslims. But the DSEA would actually turn citizens associated with "terrorist" groups into aliens. They would then be subject to the deportation power, which the DSEA would expand to give the Attorney General the authority to deport any noncitizen whose presence he deems a threat to our "national defense, foreign policy or economic interests." One federal court of appeals has already ruled that this standard is not susceptible to judicial review.
So this provision would give the Attorney General unreviewable authority to deport any noncitizen he chooses, with no need to prove that the person has engaged in any criminal or harmful conduct. A US citizen stripped of his citizenship and ordered deported would presumably have nowhere to go. But another provision authorizes the Attorney General to deport persons "to any country or region regardless of whether the country or region has a government." And failing deportation to Somalia (or a similar place), the Justice Department has issued a regulation empowering it to detain indefinitely suspected terrorists who are ordered deported but cannot be removed because they are stateless or their country of origin refuses to take them back.
Other provisions are designed to further insulate the war on terrorism from public and judicial scrutiny. The bill would authorize secret arrests, a practice common in totalitarian regimes but never before authorized in the United States. It would terminate court orders barring illegal police spying entered before September 11, 2001, without regard to the need for judicial supervision. It would allow secret government wiretaps and searches without even a warrant from the supersecret Foreign Intelligence Surveillance Court when Congress has authorized the use of force. And it would give the government the same access to credit reports as private companies, without judicial supervision.
Historically, we have imposed a higher threshold, and judicial oversight, on government access to such private information, because government has the motive and the wherewithal to abuse the information in ways private companies generally do not. But the trajectory of the war on terrorism is probably best illustrated by an obscure provision that would eliminate the distinction between domestic terrorism and international terrorism for a host of investigatory purposes. The Administration's argument sounds reasonable enough--terrorism is terrorism, whether it's within the United States or has an international component.
But in the Patriot Act debates, the Administration argued that it should be afforded broader surveillance powers over "international terrorism" because such acts are simultaneously a matter of domestic law enforcement and foreign intelligence. Because foreign intelligence gathering has traditionally been subject to looser standards than criminal law enforcement, the government argued, the looser standards should extend to domestic investigations of "international terrorism." But now it proposes to extend the same loose standards to investigations of wholly domestic crimes. The DSEA's treatment of expatriation and domestic terrorism are harbingers of things to come. Thus far, much of the war on terrorism has been targeted at foreign nationals and sold to the American people on that ground.
Americans' rights are not at stake, the argument goes, because we're concerned with "international" crime committed mostly by "aliens." With the DSEA, however, the Administration seeks to transgress both the alien-citizen line, by turning citizens into aliens for their political ties, and the domestic-international line, extending to wholly domestic criminal-law-enforcement tools that were previously reserved for international terrorism investigations. How will Congress respond? Thus far, when citizens' rights have been directly threatened, Congress has taken civil liberties seriously. Most recently, it blocked the Pentagon's Total Information Awareness data-mining program.
But it blocked it only as applied to US citizens. As long as the Pentagon violates only foreign nationals' privacy, Congress in effect said, Go ahead. But that tactic--protecting citizens' rights while ignoring those of foreign nationals--is untenable, not only on moral grounds but because if the Administration gets its way, we are all potentially "aliens."
This article can be found on the web at: http://www.thenation.com/doc.mhtml?i=20030317&s=cole