Special Report

Justice Dept. Drafts Sweeping Expansion of Anti-Terrorism Act

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.”

To write a letter to the editor for publication, e-mail letters@publicintegrity.org. Please include a daytime phone number.

Copyright 2001, The Center for Public Integrity. All rights reserved

Please help spread the word about this petition to block Patriot Act II:

http://www.PetitionOnline.com/civlib/petition.html

or get more information, and a copy of the petition to circulate yourself:

http://www.etext.org/Politics/MIM/agitation/civlib/

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Paul Revere's Ride

Henry Wadsworth Longfellow

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Listen my children and you shall hear

Of the midnight ride of Paul Revere,

On the eighteenth of April, in Seventy-five;

Hardly a man is now alive

Who remembers that famous day and year.

He said to his friend, "If the British march

By land or sea from the town to-night,

Hang a lantern aloft in the belfry arch

Of the North Church tower as a signal light,--

One if by land, and two if by sea;

And I on the opposite shore will be,

Ready to ride and spread the alarm

Through every Middlesex village and farm,

For the country folk to be up and to arm."

Then he said "Good-night!" and with muffled oar

Silently rowed to the Charlestown shore,

Just as the moon rose over the bay,

Where swinging wide at her moorings lay

The Somerset, British man-of-war;

A phantom ship, with each mast and spar

Across the moon like a prison bar,

And a huge black hulk, that was magnified

By its own reflection in the tide.

Meanwhile, his friend through alley and street

Wanders and watches, with eager ears,

Till in the silence around him he hears

The muster of men at the barrack door,

The sound of arms, and the tramp of feet,

And the measured tread of the grenadiers,

Marching down to their boats on the shore.

Then he climbed the tower of the Old North Church,

By the wooden stairs, with stealthy tread,

To the belfry chamber overhead,

And startled the pigeons from their perch

On the sombre rafters, that round him made

Masses and moving shapes of shade,--

By the trembling ladder, steep and tall,

To the highest window in the wall,

Where he paused to listen and look down

A moment on the roofs of the town

And the moonlight flowing over all.

Beneath, in the churchyard, lay the dead,

In their night encampment on the hill,

Wrapped in silence so deep and still

That he could hear, like a sentinel's tread,

The watchful night-wind, as it went

Creeping along from tent to tent,

And seeming to whisper, "All is well!"

A moment only he feels the spell

Of the place and the hour, and the secret dread

Of the lonely belfry and the dead;

For suddenly all his thoughts are bent

On a shadowy something far away,

Where the river widens to meet the bay,--

A line of black that bends and floats

On the rising tide like a bridge of boats.

Meanwhile, impatient to mount and ride,

Booted and spurred, with a heavy stride

On the opposite shore walked Paul Revere.

Now he patted his horse's side,

Now he gazed at the landscape far and near,

Then, impetuous, stamped the earth,

And turned and tightened his saddle girth;

But mostly he watched with eager search

The belfry tower of the Old North Church,

As it rose above the graves on the hill,

Lonely and spectral and sombre and still.

And lo! as he looks, on the belfry's height

A glimmer, and then a gleam of light!

He springs to the saddle, the bridle he turns,

But lingers and gazes, till full on his sight

A second lamp in the belfry burns.

A hurry of hoofs in a village street,

A shape in the moonlight, a bulk in the dark,

And beneath, from the pebbles, in passing, a spark

Struck out by a steed flying fearless and fleet;

That was all! And yet, through the gloom and the light,

The fate of a nation was riding that night;

And the spark struck out by that steed, in his flight,

Kindled the land into flame with its heat.

He has left the village and mounted the steep,

And beneath him, tranquil and broad and deep,

Is the Mystic, meeting the ocean tides;

And under the alders that skirt its edge,

Now soft on the sand, now loud on the ledge,

Is heard the tramp of his steed as he rides.

It was twelve by the village clock

When he crossed the bridge into Medford town.

He heard the crowing of the cock,

And the barking of the farmer's dog,

And felt the damp of the river fog,

That rises after the sun goes down.

It was one by the village clock,

When he galloped into Lexington.

He saw the gilded weathercock

Swim in the moonlight as he passed,

And the meeting-house windows, black and bare,

Gaze at him with a spectral glare,

As if they already stood aghast

At the bloody work they would look upon.

It was two by the village clock,

When he came to the bridge in Concord town.

He heard the bleating of the flock,

And the twitter of birds among the trees,

And felt the breath of the morning breeze

Blowing over the meadow brown.

And one was safe and asleep in his bed

Who at the bridge would be first to fall,

Who that day would be lying dead,

Pierced by a British musket ball.

You know the rest. In the books you have read

How the British Regulars fired and fled,---

How the farmers gave them ball for ball,

>From behind each fence and farmyard wall,

Chasing the redcoats down the lane,

Then crossing the fields to emerge again

Under the trees at the turn of the road,

And only pausing to fire and load.

So through the night rode Paul Revere;

And so through the night went his cry of alarm

To every Middlesex village and farm,---

A cry of defiance, and not of fear,

A voice in the darkness, a knock at the door,

And a word that shall echo for evermore!

For, borne on the night-wind of the Past,

Through all our history, to the last,

In the hour of darkness and peril and need,

The people will waken and listen to hear

The hurrying hoof-beats of that steed,

And the midnight message of Paul Revere.