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. 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.
RELATED DOCUMENTS
The draft of the Domestic Security Enhancement Act of 2003 at
. Read the transcript of Moyers'
interview with Charles Lewis
.
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.'
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Copyright 2002, The Center for Public Integrity. All rights reserved