- WASHINGTON -- 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"
shows 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.
-
- 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.
-
- http://64.176.94.191/article1256.htm
|
