Under Attack: Chilling Sequel to Anti-Terrorism Law Would Assault Civil Liberties

March 17, 2003 by Dorothy Ehrlich and Sanjeev Bery, The Daily Journal

The Department of Justice is considering sweeping new legislative proposals, dubbed “USA Patriot Act II,” that would fundamentally alter the Constitution and consolidate power in the Executive. A draft of the legislation was obtained by the Washington-based Center for Public Integrity earlier this month and is a chilling sequel to the USA PATRIOT Act, hurriedly adopted by Congress and signed by President Bush six weeks after September 11, 2001.
The controversial USA Patriot Act already contains provisions that expand the government’s authority to plant wiretaps, enter homes, search computers, and carry out other covert surveillance. The Act also permits the FBI to obtain private consumer records in secret from libraries, bookstores, hospitals and credit card companies, among other places, without probable cause. In addition, the Act grants power to the Attorney General to subject citizens of other nations to indefinite detention.

In response to the USA Patriot Act, communities across the country have vigorously challenged the federal law by urging their local city and county officials to pass resolutions opposing or calling for repeal of the Act.

Already, some 65 cities and counties nationwide, representing more than 5 million Americans, have passed resolutions. The communities range from Carrboro, North Carolina, to Fairbanks, Alaska. In California, the list includes cities and counties like San Francisco, Oakland, Claremont, San Anselmo, West Hollywood, and Yolo County. Efforts are underway to pass similar resolutions in more than 100 communities in 35 states.

But as widespread protest grows, the Department of Justice has been secretly drafting new legislation called the Domestic Security Enhancement Act of 2003. “USA Patriot Act II” contains a multitude of new and sweeping law enforcement and intelligence gathering powers and expands on many provisions in the first Patriot Act. The draft, dated January 9, 2003, is so secret that it was only sent to Speaker of the House Dennis Hastert and Vice President Richard Cheney. No other member of Congress was consulted. The Justice Department’s own deputy director of public affairs was reportedly not aware of the document.

The implications of the draft bill include a severe diminishment of basic checks and balances on the power of the executive branch of government and an erosion of personal privacy and the freedoms of speech, association and religion. As Representative Jerrold Nadler, D-N.Y. warned, “Patriot Act II” amounts “to little more than the institution of a police state.”

Provisions in the Attorney General’s bill would allow the government to strip citizenship from Americans who provide support for a group designated by the federal government as a "terrorist organization" (section 501). Significantly, the USA PATRIOT Act broadened the definition of groups that could be so designated to potentially include domestic protest organizations.

Also included are provisions permitting -- without court order and at the sole discretion of the Attorney General -- wiretapping of Americans for 15 days (sections 103, 104) without a declaration of war by Congress, if the Executive Branch decides unilaterally that an attack has created an emergency. While the Justice Department would have to check in with a judge after the 15 days, the information obtained during that period could still be retained and used against innocent Americans.

Other contentious proposals in the draft legislation include statutory authority for secret detentions and the termination of court-approved limits on police spying. Also, the draft bill would apply the death penalty to offenses that, because of the redefinition of domestic terrorism in USA PATRIOT, could sweep in domestic protests that "involve violent acts or acts dangerous to human life." If an anti-war protestor broke the law during a demonstration and someone died as a result, the protestor could be subject to the death penalty. (Section 411)

Specifically, the bill, if signed into law, would also:

• Make it easier for the government to initiate surveillance and wiretapping of U.S. citizens under the shadowy, top-secret Foreign Intelligence Surveillance Court. (Sections 101, 102 and 107)
• Shelter federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials. (Section 106)
• Authorize, in statute, the Department of Justice’s campaign of secret detentions by including a provision that would authorize secret arrests in immigration and other cases where the detained person is not criminally charged. (Section 201)
• Threaten public health by severely restricting access to crucial information about environmental health risks posed by facilities that use dangerous chemicals. (Section 202)
• Harm Americans’ ability to receive a fair trial by limiting defense attorneys from challenging the use of secret evidence in criminal cases. (Section 204)
• Reduce the ability of grand jury witnesses in terrorism investigations to defend themselves against public accusations by gagging them from discussing their testimony with the media or the general public. (Section 206)
• Allow for the sampling and cataloguing of innocent Americans’ genetic information without court order and without consent. (Sections 301-306) · Permit, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement. (Section 311)
• Undercut trust between police departments and immigrant communities by sharing sensitive information with local police on a broad basis, without any connection to an anti-terrorism investigation. (Section 311)
• Terminate court-approved limits on police spying, which were initially put in place to prevent McCarthy-style law enforcement persecution based on political or religious affiliation. (Section 312)
• Provide an incentive for neighbors to spy on neighbors and pose problems similar to those inherent in Attorney General Ashcroft’s "Operation TIPS" by granting blanket immunity to businesses that phone in terrorism tips, even if their actions are taken with reckless disregard for the truth or invade the privacy of consumers. (Section 313)
• Under the pretext of fighting terrorism, unfairly target undocumented immigrants with extended jail terms for common immigration offenses. (Section 502)
• Provide for summary deportations without evidence of crime or criminal intent, even of lawful permanent residents, whom the Attorney General says are a threat to national security. (Section 503)
• Abolish fair hearings for lawful permanent residents convicted of even minor criminal offenses through an "expedited removal" procedure, and prevent any court from questioning the government’s unlawful actions by explicitly exempting these cases from habeas corpus. Congress has not exempted any person from habeas corpus -- a protection guaranteed by the Constitution -- since the Civil War. (Section 504)

The “USA Patriot Act II” represents a quantum leap in Attorney General John Ashcroft’s assault on the Constitution. Although Congress passed the first USA Patriot Act with scant discussion or dissent, it has since taken steps to thwart some of the administration’s more egregious proposals. Congress set limits on the Pentagon’s Total Information Awareness (T.I.A.), a centralized database that would use “data-mining” technology to pry into the most minute and intimate details of our private lives. It also banned Operation TIPS (Terrorism Information and Prevention System), Ashcroft’s plan to have some 11 million American workers voluntarily spy on their neighbors. Now, as city and county councils around the nation join their voices to defend the Constitution, we urge our elected officials in Washington, DC, to heed that call. Congress must act now to stop this unprecedented attack on civil liberties. This draft proposal must not become law. Congress must say “no” to USA Patriot II.

Dorothy Ehrlich, Executive Director and Sanjeev Bery, Organizer/Advocate, ACLU-NC