DOJ Drafts Sweeping Expansion of the UPABy Charles Lewis and Adam Mayle
The Center for Public Integrity (website)
2/7/2003 (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.” Close |