TSA-Style Thinking Set To Spread Throughout Govt.
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. Many of the provisions of the
proposed legislation appear to be modeled on new rules imposed upon
the aviation industry by the Transportation Security
Administration.
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." (full text of Justice Department response linked at
bottom of this story)
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."
Legislation "Raises A Lot Of Concerns"
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.”
Key Provision Of The Domestic Security Enhancement Act Of
2003:
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.
Seeking Broader Powers: Security Vs. Liberty
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 Dir. Sessions: "It's A Very Delicate Thing"
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.
No Consultations With Congress?
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.”