- =WASHINGTON (UPI) -- Think tank experts are concerned
about indications that the administration of President George W. Bush wants
to broaden government powers of domestic intelligence gathering, surveillance,
and prosecution beyond the expanded powers granted last year by the USA
Patriot Act.
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- Their worries about further restrictions being placed
on constitutionally guaranteed rights in the name of national security
were sparked by a draft bill leaked from the Justice Department last month,
which detailed plans for a bold and sweeping expansion of the controversial
law signed into law in the aftermath of the Sept. 11, 2001, terrorist attacks.
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- "I am appalled by the draft," Robert Higgs,
a senior fellow in political economy at the Independent Institute told
United Press International.
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- "I thought the Patriot Act was atrocious, and adding
to it only makes the situation worse," he said. "It (the draft
legislation) is the potential embodiment in law of a thorough, ongoing
police state apparatus."
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- The USA Patriot Act gave federal law enforcement officials
much broader authority to conduct electronic surveillance and wiretaps,
and tightened federal oversight of financial and banking activities. Among
the law's many provisions were changes to the Foreign Intelligence Surveillance
Act that allow the FBI to share information gathered in terror investigations
with local law enforcement -- a reversal of decades of practice.
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- The leaked draft measure -- "The Domestic Security
Enhancement Act of 2003" -- is dated Jan. 9 and has earned the nickname
"Patriot Act II."
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- Although Attorney General John Ashcroft said last week
that a final bill has not been developed, the very existence of the Patriot
Act II draft has raised red flags. The most contentious provisions in the
draft would allow the government to collect DNA from suspected terrorists
or other individuals involved in terror investigations, and the power to
revoke the citizenship of, and deport, naturalized citizens suspected of
terror activities or of providing "material support" to terrorist
groups.
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- Higgs said the denaturalization and deportation provisions
are the most egregious components of the draft because they would allow
the removal of citizenship without the individual being convicted of a
crime, and under terms so broad that almost anything could be defined as
an applicable offense.
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- "In my mind, if that doesn't absolutely epitomize
totalitarianism I would like to what does," said Higgs. "They
can categorize the most innocent action -- from signing a petition or making
a chartable contribution -- as an act of terrorism."
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- Timothy Lynch, director of the Project on Criminal Justice
at the libertarian Cato Institute, said that the citizenship-stripping
provisions are important because citizenship has become a determining factor
in Justice Department decisions about whether to classify a terror suspect
as an enemy combatant.
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- This classification determines whether someone is given
access to counsel and other legal protections afforded by Constitution;
is kept in a military brigade and tried in military court; or even sent
to the government's overseas holding camps for an indefinite period without
prosecution.
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- "If the government can strip people of their citizenship
before they are convicted of a crime, they might do it to send people outside
of the civilian court system," said Lynch.
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- However, there are policy analysts who do not find the
Patriot Act II draft problematic.
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- Michael Scardaville, a policy analyst for homeland security
at the conservative Heritage Foundation, said that the citizenship provisions
would only codify that those citizens who take up arms against the United
States as terrorists would be treated as traitors.
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- "I don't think you have anyone who disagrees that
if someone decided to fight on behalf of (Iraqi leader) Saddam Hussein,
or for the former Soviet Union in the Cold War, they no longer consider
themselves an American citizen," Scardaville told UPI.
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- Other problematic provisions in the draft include a measure
allowing federal investigators to conduct wiretaps without a court order
for 15 days following an attack on the United States, or after congressional
approval of the use of military force.
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- The draft bill would give the government the power to
secretly detain citizens and to strictly limit those subpoenaed by a grand
jury from speaking about their testimony publicly. The draft bill would
also eliminate the 2005 expiration of key intelligence powers provided
under the Patriot Act. These sunset provisions were a concession to critics
of the bill in Congress.
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- It addition, the new bill would further ease restrictions
on the use of secret evidence in the prosecution of terror cases, and further
expand authorization periods for secret government Internet surveillance
and wiretaps.
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- Lynch also said other provisions -- such as one that
would immunize federal agents from prosecution when they engage in illegal
surveillance acts, and another that would allow for the collection of DNA
from anyone connected to an investigation -- are particularly troublesome.
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- "I think we seem to be slipping into a situation
where the government is going to want a comprehensive DNA database on just
about everybody," he said. "It is not called for specifically
in Patriot II but it seems to be another step toward the government wanting
to have a DNA sample from everybody."
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- Scardaville said that the draft should not be eliciting
the level of concern raised by civil libertarians, because it is simply
a review of the authority granted to the Justice Department under the Patriot
Act. He said that such reviews are important because the United States
must continually adapt to the challenges it faces following Sept. 11. And,
he said, it remains only a draft.
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- "We have to evaluate which laws are appropriate
and adjust to the paradigm shift," he said. "We did this after
World War II and in the years between the two world wars. We did it after
the Civil War."
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- Scardaville said that a provision that places terrorist
organizations on a par with foreign governments in the U.S. legal code
exemplifies how the Justice Department is only attempting to fix holes
in existing law.
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- He added that a provision that would make information
about possible terrorist targets --such as chemical plants -- available
solely in read-only format on Web terminals in public reading rooms is
an example of where the draft strikes a good balance between the need for
public information about such facilities, and national security controls
on potentially dangerous information.
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- Lynch said the notion that the draft was merely a review
does not hold water.
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- "I don't see anything about repealing or surrendering
any power that was conveyed under the Patriot Act," he said. "In
fact it (the draft) seems to be ideas for accruing more power."
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- Higgs also said that Patriot Act has shown that limiting
civil liberties does little to promote domestic security.
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- "Although it (the Patriot Act) has had the result
of setting aside many established Fourth Amendment protections, it has
not played an important role in the government apprehension of terrorists
or prevention of terrorists from operating in this country," said
Higgs.
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- Lynch added that although the draft bill has little chance
of passage if introduced on Capitol Hill in its current form, he fears
such a measure will be promoted by the administration in the event of another
major terrorist attack on U.S. soil.
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- "I think if these provisions are debated in a calm,
reflective atmosphere most of them will not be enacted into law,"
he said. "But I am afraid that if we are in the immediate aftermath
of an attack, Congress will not give these provisions the scrutiny they
deserve, and they might rush into it like they did with the Patriot Act."
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- Higgs echoed Lynch's concern.
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- "I can only hope people will wake up to what is
happening," he said. "It seems to me that when we enacted the
USA Patriot Act, the United States came closer to being a police state.
If Patriot II is enacted we have kissed the Constitution goodbye."
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