Patriot II: The SequelBy ANITA RAMASASTRY
FindLaw.com (website)
2/17/2003 Soon after the terrorist acts of September 11, Congress passed the USA Patriot
Act, which conferred broad new powers upon the federal government. Now John Ashcroft
and his scribes at the Justice Department have been working secretly to create new,
120-page draft legislation that, if enacted, would expand greatly upon these already
sweeping powers.
This daring sequel to the USA Patriot Act is known internally as the Domestic
Security Enhancement Act. It is also nicknamed Patriot II (the name by which I'll
refer to it here), or Son of Patriot. On February 7 of this year, a January 9 draft
of Patriot II was revealed to the public - but not by the government. It was made
public only through a leak.
Even Congress itself, strikingly, appears to have played little or no part in
Patriot II's drafting (though it seems that Speaker of the House Hastert was, at
least, given the opportunity to review the draft last month, as was Vice President
Cheney.).
Perhaps the Bush Administration is looking to repeat its experience with the
original USA Patriot Act. Amidst the emotional turmoil after September 11, the Administration
introduced the Act and got it enacted in a matter of weeks. The Senate Judiciary
Committee had only a brief, one-and-a-half-hour hearing on the Act, in which Attorney
General Ashcroft testified but took no questions. In the House, meanwhile, there
was no testimony from opponents of the bill.
After September 11, there was at least some rationale for this expedited consideration.
Now, however, there is far less exigency. If the introduction of Patriot II in Congress
coincides with the Iraq war, it may well be because the Administration has planned
it that way, to take advantage of circumstances to ram the bill through both Houses
quickly.
Even if Patriot II does end up being introduced in wartime, citizens and their
representatives should fight this legislation tooth and nail, for it threatens to
take even more of our liberties away. It is a wholesale assault on privacy, free
speech, and freedom of information.
Making Total Information Awareness the Law
Admiral Poindexter's proposed Total Information Awareness (TIA) program, which
sought to build data profiles of all Americans, sparked a wide public outcry. Congress
recently warned against using TIA as a tool against US citizens. Nevertheless, Patriot
II, as draft by the Attorney General and his staff, would begin to make TIA the
law.
For instance, under Patriot II, federal agents would not need a subpoena or obtain
a court order to access our consumer credit reports. This provision would open the
wedge for TIA to be implemented through a huge database. Our credit reports are
repositories of a great deal of sensitive information - from our employment history
to where we shop, borrow and transact.
To see the information, the feds would only have to certify that they will use
the information "in connection with their duties to enforce federal law." Note that
they would not have to certify that the person whose information was accessed was
suspected of terrorism, or indeed, any other crime. And no one would be notified
that their records had been accessed. When a commercial entity requests a consumer's
credit report, a note is made in the consumer's file alerting him to this fact.
A Mandate to Collect Genetic Information
Meanwhile, not only data, but genetic information would also be collected by
the government if Patriot II were passed.
DNA would be put into a "Terrorist Identification Database." It would contain
information not only for proven terrorists, but also "suspected terrorists." And
that term would include anyone who was associated with, or had provided money or
other support for, groups designated "terrorist."
It might also include protesters, or anyone else the government dislikes. Remember,
the original USA Patriot Act defined the new crime of "domestic terrorism" broadly,
to encompass "any action that endangers human life that is a violation of any Federal
or State law."
Certainly one could envision a disruptive war protester who resisted arrest being
tagged as a "suspected domestic terrorist," and forced to provide DNA. Would the
government need to get a court order to procure the DNA? Not under Patriot II.
And what if the protester wouldn't comply? That would be a Class A misdemeanor,
punishable by up to one year in prison and a $100,000 fine. Anyway, the protester's
refusing to give up DNA might be futile - if any other government agency happens
to have a blood sample, Patriot II gives the government the right to put it in the
new database.
Incredibly, DNA would also be collected from anyone who is, or has been, on probation
for any crime, no matter how minor. State governments would be required to collect
DNA samples from state probationers and provide them to the federal government.
Increasing Surveillance Powers
Database surveillance, under Patriot II, would also be combined with increased
active surveillance of citizens.
To assess the change, it's important to remember that the Patriot Act itself
already greatly expanded surveillance powers. Now Patriot II would, if enacted,
makes it even easier for the government to engage in surveillance of U.S. citizens,
without having to establish traditional probable cause under the Fourth Amendment.
It would do so by making it easier for law enforcement to avail itself of the Foreign
Intelligence Surveillance Court, which issues warrants more easily than federal
district courts will.
The FISA Court is meant to address international terrorism, involving mostly
noncitizens. Patriot II, however collapses the distinction between domestic and
international terrorism, treating wholly domestic criminal acts as subject to the
same, looser legal rules that apply to foreign intelligence gathering.
Remember, domestic terrorism is defined very broadly as "any action that endangers
human life that is a violation of any Federal or State law." That means anything
from getting into a raucous bar fight, to driving recklessly over the state speed
limit, could theoretically count. And if the government finds a particular person
suspicious, they could cite law violations as far from terrorism as these as a valid
excuse for surveillance.
Worse, even those persons who cannot be deemed "domestic terrorists" because
they have not broken any law, can alternatively be deemed "foreign powers" under
Patriot II - even if they are American citizens or permanent residents. This allows
the FBI to get pen registers on American citizens for a foreign intelligence investigation
- without having to show any criminal or terrorist connection.
Gagging American Citizens and Cutting Off Their Rights to Sue
If you don't like the government's policies, including these, Patriot II says:
Too bad. Don't try to make a federal case out of it - we'll bar you at the courthouse
door.
What if you're lucky enough discover that you've been illegally spied on, in
violation of your Fourth Amendment rights? Too bad. Patriot II would provide immunity
from liability to law enforcement engaging in spying operations against the American
people. The proposed act provides a defense for federal agents who engage unauthorized
searches and surveillances relating to foreign intelligence when they are acting
"pursuant to a lawful authorization from the President or the Attorney General."
What if a disgruntled business competitor chooses to falsely claim to the government
that you're a "suspected terrorist"? Again, too bad. Don't consider suing the competitor,
no matter what consequences ensure Patriot II eliminates civil liability for businesses
and employees that report "suspected terrorists" to the federal government, no matter
how malicious or unfounded the tip may be.
Like TIA, Operation TIPS - which would have enlisted government employees to
spy on citizens - elicited public outcry. But this is TIPS all over again. If they
like, your package courier or cable guy can report you to the feds with impunity.
Broadly Criminalizing Encryption of Evidence
Meanwhile, in your search for a shred of privacy that might remain to you, don't
even think about trying to protect your email. Under Patriot II, the government
may go after you for that, too.
Specifically, Patriot II, as currently drafted, would makes it a new, separate
crime to use encryption in the commission of another crime. To be convicted, the
defendant must be shown to have "knowingly and willfully use[d] encryption technology
to conceal any incriminating communication" relating to a federal felony he is committing,
or attempting to commit.
The "federal crime" limitation may seem significant, until you realize that "domestic
terrorism" - which can be based on a state law violation - is a federal crime. Remember,
too, how loosely "domestic terrorism" is defined, in a way that could encompass
a protester's resisting arrest, and if you do, you may reasonably fear using encryption
even if you are not engaged in any criminal activity at all.
What if your encrypted email about protest planning is deemed "incriminating
evidence" of your plan to resist arrest at the protest? You could be looking at
five to ten.
The penalty for this offense alone would be up to ten years in prison. In addition,
a Justice Department analysis included with the proposal suggests that the illegal
encrypting ought to carry a mandatory minimum term of five years in prison.
Notably, the federal felony relating to the "incriminating communication" need
not be an act of terrorism. It could be any federal crime, from the most major to
the most minor, the most violent to the most excruciatingly technical. And that's
frightening.
For instance, if a peer-to-peer website's users swap files, thus violating the
Digital Millenium Copyright Act, and encrypt the files they are swapping, they may
automatically face five years in prison, and could serve ten, for the encryption
alone.
What is most shocking about the new encryption crime is that it is not limited
to terrorism. This is the first attempt to regulate encryption domestically at all.
Shrouding Government Actions in Secrecy
While the government, according to Patriot II, has the right to know virtually
everything about you, you have little right to know anything about the government.
Current grand jury secrecy rules apply only to jurors, prosecutors and courtroom
staff. Patriot II would expand them to apply to witnesses too - meaning that ordinary
citizens could not discuss their testimony with anyone but their attorney. In theory,
they'd have to keep mum even with spouses or children, or face serious consequences.
What if they've been improperly subpoenaed in the first place? Under Patriot
II, too bad: Neither individuals nor organizations may move to try to quash a federal
grand jury subpoena.
Will the grand jury itself at least remain independent? Nope. Patriot II allows
the federal government to place gag orders on both federal and state grand juries,
and to take over the proceedings.
Detentions will be similarly shrouded in an atmosphere of dead secrecy. The Justice
Department's position on detainees is that if they are held incommunicado indefinitely
without being charged with a crime, they need not be publicly identified. Patriot
II would make that dubious position the law.
Meanwhile, if you do happen to somehow find out the identity or whereabouts of
- or anything else about - a detainee, it would be criminal under Patriot II to
reveal it. And that's the case even if you are the detainee's parent, spouse, or
child.
Okay, you might ask, this is a lot of secrecy, but isn't it at least somewhat
limited? Can't I at least use the Freedom of Information Act (FOIA) to figure out
what the government is doing when it's not secretly detaining people, or secretly
conducting grand jury proceedings?
No. Under Patriot II, FOIA would not extend to information "specifically exempted
from disclosure by statute." What kind of statutes? Well, the USA Patriot Act might
be one. Patriot II might be another.
It's a clever strategy: Collect private information. And then when citizens try
to find out what you've collected, cite their own privacy right back at them as
a reason not to divulge it.
If it seems farfetched to think the government could invoke privacy in this instance,
consider that Ashcroft actually cited detainees' privacy as a reason not to release
their names to the press, the public, or even their families.
Denaturalization: The Citizenship Death Penalty
In sum, Patriot II puts in jeopardy the First Amendment right to speak freely,
statutory and common law rights to privacy, the right to go to court to challenge
government illegality, and the Fourth Amendment right against unreasonable searches
and seizures. But that's not all.
It also puts in jeopardy perhaps the most basic right of all: The right to walk
the streets in safety without being "disappeared" by the government. Chileans have
not always enjoyed this right. Americans, until now, always have.
Suppose you, as a citizen, attended a legal protest for which one of the hosts,
unbeknownst to you, is an organization the government has listed as terrorist. Under
Patriot II, you may be deported and deemed no longer an American citizen.
Under Patriot II, if you are simply suspected of terrorist activity, this can
occur. More specifically, a U.S. citizen may 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'."
How can you tell if the citizen wanted to relinquish citizenship? Under Patriot
II, the intent can be inferred from conduct. So any association with even the legal
activities of a designated group, plus any act that can be interpreted as disloyal
to the United States, can mean you are deported, and no longer considered a citizen.
No Sunset Provisions for Patriot II Mean We Are Stuck with It If It Passes
The original USA Patriot Act has sunset provisions, under which the Act will
expire if not renewed in five years. Patriot II, however, does not have such provisions.
Indeed, it would go so far as to remove this important check from the original Patriot
Act. So if Congress, and the American people don't focus carefully on Patriot II,
even in the midst of impending war, we may be stuck with both Patriot Acts indefinitely.
Especially for that reason, Congress and the public need to learn more. Senator
Patrick Leahy has argued, for instance, that before the Department of Justice asks
Congress for more powers, it needs to disclose how it is using the ones it already
has. Instead, the Department has so far repeatedly balked at both FOIA requests
from the press and the public and requests from Congress for more detailed reporting
pursuant to USA Patriot Act.
At the very least, Congress and the public should insist on a full understanding
of what the Justice Department is doing before granting the executive branch still
more authority via Patriot II. Close |