Exposed: Secret Dept. of Justice Draft Bill to
Extend Powers of the USA Patriot Act
Dissident
Voice News Service
February 7, 2003
________________________________________________________________________
1) US Considers New
Anti-Terrorism Legislation
3) Transcript: Bill
Moyers interviews Chuck Lewis (Center for Pubic Integrity)
4) (CPI) Justice Dept.
Drafts Sweeping Expansion of Anti-Terrorism Act
5) US Dept. of Justice Response
to NOW/CPI Report
________________________________________________________________________
1) U.S.
Considers New Anti-Terrorism Legislation
By James Vicini
Reuters;
February 7, 2003
http://reuters.com/newsArticle.jhtml?type=politicsNews&storyID=2192053
WASHINGTON
(Reuters) - The U.S. Justice Department, which won broad new powers after the
Sept. 11, 2001, attacks to eavesdrop and detain immigrants, is drafting
legislation that would authorize the creation of a terrorist identification
database, department officials said on Friday.
They said the
proposals, which already have been criticized by civil liberties groups, also
would limit the disclosure of certain information and allow pretrial detention
of people suspected of terrorist activity without bail.
The officials
said the proposals, still in draft form and called the Security Enhancement Act
of 2003, would require congressional approval. They said the proposals remain
under active discussion, but final measures were not imminent.
The American
Civil Liberties Union denounced the draft legislation, warning it would harm
civil liberties.
"The
initial USA Patriot Act undercut many of the traditional checks and balances on
government power -- the new ... proposal threatens to fundamentally alter the
constitutional protections that allow us to be both safe and free," said
Gregory Nojeim of the civil liberties group.
Justice
Department spokeswoman Barbara Comstock said Justice Department employees have
not presented any final proposals to Attorney General John Ashcroft or to the
White House.
"During our
internal deliberations, many ideas are considered, some are discarded and new
ideas emerge in the process along with numerous discussion drafts," she
said.
"The
department's deliberations are always undertaken with the strongest commitment
to our Constitution and civil liberties," Comstock said in a statement.
The draft
legislation, first disclosed by the Washington-based Center for Public
Integrity, includes the following provisions, according to the officials:
-- further limit
public disclosure of information relating to terrorism investigations by
enhancing the Justice Department's ability to deny requests to get the data
through the Freedom of Information Act;
-- set up a DNA
database that would include people associated with suspected terrorist groups
and noncitizens suspected of certain crimes or who have supported
"terrorist" groups;
-- terminate
state law enforcement decrees -- originally put in place to stop police spying
abuses -- that limit the amount of information police can gather about
individuals and organizations;
-- Allow
pretrial detention without bail for people suspected of terrorist activity;
-- Allow for the
expatriation of American citizens who were proven to have wanted to relinquish
their nationality and becomes a member of or provides material support to a
group designated by the United States as a "terrorist organization."
Less than six
weeks after the hijacked plane attacks, President Bush signed the Patriot Act
of 2001. The bill enhances the ability of the federal government to tap phones,
share intelligence information, track Internet usage, e-mails and cell phones
and protect U.S. borders.
2) PBS' NOW With
Bill Moyers Exposes Secret Draft Bill from the Department of Justice to Extend
Powers of the Patriot Act
Published on
Friday, February 7, 2003 by CommonDreams.org
Tonight, on
Friday, February 7 at 9 P.M. on PBS (check local listings at http://www.pbs.org/now/sched.html),
NOW with Bill Moyers will provide details of a Justice Department draft of a
bill designed to extend the powers of the Patriot Act. The draft bill was
provided exclusively to NOW by the Center for Public Integrity,
[www.publicintegrity.org], which
obtained it from a confidential government source. The document, entitled the
Domestic Security Enhancement Act of 2003, outlines significant broadening of
law enforcement powers, including domestic intelligence gathering,
surveillance, and law enforcement prerogatives, while decreasing public access
to information and judicial review authority.
Dr. David Cole,
Georgetown University Law professor and author of Terrorism and the
Constitution assessed the document for NOW with Bill Moyers and the Center for
Public Integrity. "I think this is a quite radical proposal. It authorizes
secret arrests. It would give the Attorney General essentially unchecked
authority to deport anyone who he thought was a danger to our economic
interests. It would strip citizenship from people for lawful political
associations," he told NOW's Roberta Baskin. "And...it has not been
put on the table so there can be a discussion about it."
NOW interviewed
executive director of the Center for Public Integrity, Charles Lewis, in New
York on Thursday. When asked to gauge the significance of the document Lewis
responded: "It just deepens and broadens, further extends the first
Patriot Act," he says. "And it's arguably...a more thorough rendering
of all the things law enforcement and intelligence agencies would like to have
in a perfect world. I think it's a very tough document when it comes to secrecy
and surveillance."
Share your views
on the issues and read more about the secret document at
http://www.pbs.org/now/politics/lewis.html.
3) Transcript:
Bill Moyers interviews Chuck Lewis
NOW with Bill
Moyers
February 7, 2003
http://www.pbs.org/now/transcript/transcript_lewis2.html
MOYERS: Chuck
Lewis, whom you just saw in that piece is with me now. He is the Executive
Director of the nonpartisan Center for Public Integrity, the organization
responsible for obtaining that document. Chuck Lewis, thank you for joining us.
LEWIS: Thank
you.
MOYERS: The
Patriot Act was passed six weeks after 9/11. We know now that it greatly
changed the balance between liberty and security in this nation's framework.
What do you think — what's the significance of this new document, called the
Domestic Security Enhancement Act of 2003?
LEWIS: I think
the significance is it just deepens and broadens, further extends the first
Patriot Act. That act in 2001, they had six weeks, which was not a lot of time
to throw something together. Now there's been 18 months of all kinds of things
that have happened and court decisions that have tried to roll back some of the
Patriot Act.
And other
concerns, law enforcement, people have, and so they've had time to sift and
sort what they want. And it's arguably might be a more thorough rendering of
all the things law enforcement and intelligence agencies would like to have in
a perfect world. It's sort of how I look at it, and I think it's a very tough
document when it comes to secrecy and surveillance.
I understand the
concerns about fear of terrorism. And it certainly…
MOYERS: We all
have those…
LEWIS: We all
have those and there are things in the legislation that make sense, and that
are reasonable, I think for any American. But there are other things that
really take some of the Patriot Act civil liberties issues that folks were
concerned about and go even further. And I think it's gonna be very
controversial. Some of these sections are gonna be debated for weeks and
months.
MOYERS: So many
of these powers latent in this draft legislation were powers that were taken
away from the intelligence community some years ago because they were abused.
LEWIS: That's
right.
MOYERS: Do you
see any protection in here against potential abuse?
LEWIS: I don't
think there's very much — there's a lot more authority and power for
government. There's less oversight and information about what government is
doing. That's the headline and that's the theme. And the safeguards seem to be
pretty minimal to me.
MOYERS: I just
go through here, you know? "Will give the Attorney General the unchecked
power to deport any foreigner?"
LEWIS: Right.
MOYERS:
Including lawful permanent resident aliens. It would give the government the
power to keep certain arrests secret until an indictment is found never in our
history have we permitted secret arrests. It would give the government power to
bypass courts and grand juries in order to conduct surveillance without a
judge's permission. I mean these do really further upend the balance between
liberty on the one hand and security on the other.
LEWIS: Well,
they do. They reduce judicial oversight with the secret intelligence courts
instead of saying the court may do this now it's the court will do this. They
can have ex parte conversations where they go into the judge without anyone
else around. In terms of information about detainees, not only can they detain
anyone they'd like to detain, there is no public information about it.
Journalists
cannot find out the names of — we detained over a thousand people after
September 11th because we thought they might all be terrorists. Not one of them
was really found with any criminal charges to be a terrorist. And we don't know
the names of almost all those people, still. And so it does appear that
everything that folks might be concerned about with the Patriot Act, this is
times five or times ten is what I look at it. I see it very serious.
MOYERS: You and
I have had this kind of discussion often, we go back a long way together. The
foundation that I serve on has been a big supporter of yours and you've been a
big supporter of our journalism. If we were fighting terrorists instead of
being journalists, wouldn't we want this kind of power in our hands?
LEWIS: Well, we
would, but we operate in a democracy and there's other considerations. I mean I
think, you know, there's no question, if you're in law enforcement, this is gonna
make it easier for you to do your job. The problem is, we have a history in our
country, just in our lifetime, in the last quarter century.
Where we've seen
FBI and CIA abuses of ordinary citizens. Where mail has been opened, where
homes have been broken into. Where infiltration has occurred in political
groups. Informants have been used, misused. People's lives have been ruined.
People have committed suicide because of the pressures brought against them by
the government, by these kinds of secret intelligence agencies.
This is not a
completely crazy idea to worry about the power of the government. And it was
curbed and rolled back in the '70s. And there is something obviously occurring
here in the public space around the whole issue of liberty and security right
now.
And it is
clearly changing and it's moving towards security. And the question for us as a
people is what is the right balance. And I think my biggest personal concern is
that there ought to be a debate about this. So the Patriot Act jammed through
Congress in six weeks.
There was a
Congressional — there was a Senate hearing that lasted an hour and a half,
there were no questions to the Attorney General by the senators. This is too
important for our country. Whatever anyone's point of view, this should be a
conversation that the country should have.
And if I'm
afraid they're waiting for a war or something and then they're gonna pop this
baby out and then try to jam it through.
MOYERS: You mean
that if it were not rolled out and discussed publicly until the United States
has had war in Iraq, people might not pay as much attention to it as they would
now.
LEWIS: They
wouldn't pay as much attention and you know, our worries and our fears are
gonna be different than they are now. And there will be less of — all these
things will melt away. These are nice concerns about liberties but we'll be at
war. And we'll have presidents and attorneys general and other government
officials telling us things. And I just see a — I see that it wouldn't work
quite as easily for them if it comes out in the next few weeks as opposed to
then.
MOYERS:
Congressman Burton, Dan Burton, of Indiana, a very conservative congressman,
who is Chairman on the Committee on Government Reform. He said recently,
"An iron veil is descending over the executive branch."
Now your forte
is moving information around in Washington trying to find out what's going on.
Would you agree with what Congressman Burton has said here?
LEWIS: I
absolutely agree with what he's saying. I mean there have been 300 roll-backs
of the Freedom of Information Act since September 11th. All over America, at
the state and local level, as well as the federal government. The Attorney
General sent a message to every federal employee, when in doubt, deny any
Freedom of Information request.
We have other
things like presidential papers being sealed off. We have reporters trying to
cover things in Afghanistan being locked in a warehouse and not able to file
their stories. Even before September 11th, we had one reporter's home phone
records seized by a grand jury without telling him or his news organization.
There's a lot of
things happening with information, access to information, and efforts to stop
journalism that I have not seen in 20 plus years of watching Washington and
journalism and government interact. And it's not just information. It's not
information for information's sake. This is about health, safety, lives…
MOYERS: What do
you mean?
LEWIS: Well, you
have this whole thing in this current draft legislation that there's a worst
case scenario type requirement that every company that is making hazardous or
toxic materials has to make that information available to the public. So if
something terrible does happen they know that it's possible that it could
happen and there's some sort of assessment about it. Well now that is not gonna
be required. Chemical companies will not have to tell the world about these
problems.
And they will —
the citizens in that community will not have access to that information in an
easy accessible way. And that's new and that affects their life. If some
problem occurs, they're unrelated to the terrorism. Something just goes wrong,
they will not know anything about that in their community.
So we're rolling
back health and safety and environmental and other considerations and
sensitivities that have been in our culture now for decades. Are melting away
because of — all in the name of fighting terrorism.
MOYERS: What
would be the Attorney General's justification for wanting to restrict access to
information about toxic chemicals?
LEWIS: Well, the
— I haven't heard one. But I think the rationale is that terrorists could get
information about a chemical plant and its security, bad security, inadequate
security and somehow then bring about a threat.
But the problem
is sunlight is the best disinfectant. If these plants have bad security or
they're not being well run and they're actually unsafe it's usually exposing it
and talking about it and the public being aware of it that ends up improving
the plant or the facility or whatever it is.
I actually find
that that's how change occurs usually. And so the ostensible rationale is to
keep it away from terrorists. But I think it's also a rationale to protect
companies frankly in this instance. Well I happen to know that's been the
chemical lobbyist's dream for a long time.
A long time
before 9/11. They did not want this information made available.
LEWIS: I see a
lot of opportunism here around the fear and paranoia in the wake of September
11th. And taking advantage of the insecurity that we all feel today. And that
is, to me, incredibly offensive. And that's why a conversation about it,
there's 40 sections in this thing. The public needs to have a sense what
exactly are we getting here. There needs to be a chewing over. This should not
jam through Congress. This should be out there and being — be talked about.
I mean the realm
between public and private, between foreign and domestic, all these things have
morphed into the citizen against all of this out there — this morass of
regulations and rules and intrusions. And at the same time they can come after
you, get your credit card data, your library records, your Internet searching,
everything. And they'll decide whether or not you're a suspect or not.
Whether or not
they like you. If you're a disfavored political group, or from the wrong ethnic
background, then you might become on the radar screen of some folks that you
don't know about, you can't find out about, and they can do things. They have —
this is incredible power.
MOYERS: One of
the provisions in here as I understand it is that the government could actually
strip citizenship from someone if — for example, if you were found, according
to this, if you were found making what you thought was a legitimate
contribution to some non profit organization.
LEWIS: Right.
MOYERS:
Foundation. And months from then, that foundation were deemed by the government
or that organization were deemed by the government to have been in some way
supporting terrorists, you could lose your citizenship because of your
contribution, even if you didn't know…
LEWIS: That's
right.
MOYERS: That you
were contributing to an organization like that.
LEWIS: No,
that's absolutely — they have that power. They can also extradite all over
world, even if we don't have treaties. I mean, some of the things in here are —
strain credulity for legal scholars. They're not sure, they've never seen these
kinds of provisions trotted out. I mean, a lot of the question is if it does
pass Congress, what would the courts do with it later.
I mean I think
there are some legitimate issues there.
MOYERS: What do
you make of this? This is the document that went from the Department of Justice
with this draft legislation to certain very key people in government. Among
them, Speaker of the House Dennis Hastert and Vice President, Richard Cheney,
for their comments on this obviously confidential document.
Why the Speaker
of the House and the Vice President and not the committee chairman of the
Judiciary Committee in the Senate or the appropriate committee in the House?
LEWIS: It's a
way to say you've consulted Congress to some extent by sending it to the
Speaker and not really consulting Congress.
As far as I can
tell, and we have not polled every member or anything like that, but it appears
that virtually no one on Capitol Hill, except for the Speaker, has seen this
legislation. I'm talking about the people at the judiciary committees in the
House and Senate don't have this legislation. And have even been kind of yanked
around a little bit for months about whether there will even be legislation.
MOYERS: The
House Judiciary Committee actually asked the FBI a few months ago how it has
used the new powers that had been given to it under the Patriot Act. And the
Justice department said, "We can't tell you that information, it's
classified."
And this
prompted then-Congressman then Bob Barr, from Georgia, another conservative, by
the way, he said the attitude of the Justice Department seems to be that even
Congress isn't entitled to know how they are using the authority that Congress
gave them.
LEWIS: It's
incredible. I mean, if Congress doesn't have oversight over the Justice
Department and these programs, who does? That's how it's supposed to work in
our constitution and in our set up for government.
MOYERS: That's
one of your real concerns, isn't it? That there's no oversight when secrecy is
this tight.
LEWIS: Absolutely.
The Congress is the people's chance to monitor the executive branch. That is
the only… it is the closest branch of government to the people. The House
members are up for election every two years. If the House of Representatives
and the Congress in general cannot keep a watch on the executive branch and
cannot be informed about their activities. There's something very serious here.
MOYERS: Chuck, I
hear people out there in the audience thinking, you know, I'm scared. We're —
this is a new ballgame, to put it trivially. War on terrorists, they came on
9/11, we keep getting reports they're coming again, who knows where it'll
happen. Everybody's scared.
You guys are
living in Lotus Land, you journalists talking about this sort of thing. Because
we really want the government to protect us from another World Trade Center
attack on the Pentagon, which is not far from where your office is in
Washington.
LEWIS: Right.
MOYERS: What
about that?
LEWIS: Look, I
wanna be protected by the government as much as anyone.
But actually, in
some ways that's beside the point. There are also freedoms and rights and
liberties that, you know, millions of Americas have fought for over 200 years
to make sure that this is a special kind of country. And isn't it possible that
to be secure and have liberties?
Why give all the
power and authority and have no oversight and accountability. What are the
safeguards. And that's the question.
MOYERS: When
someone inside government, inside the Justice Department, presumably, gives you
a confidential document marked, "Not For Distribution," The Domestic
Security Enhancement Act of 2003, knowing that this administration has been
cracking down on watchdogs and leaks from inside government, do you consider
this person a patriot?
LEWIS: I really
do. I think it takes incredible guts to take something that bothers someone,
and for whatever reason, they feel they must give it out. And they know they're
gonna be polygraphed, they're gonna be questioned. There's gonna be a clampdown
found, there's gonna be a witch-hunt after this occurs. They could very likely
not only lose their job but-- maybe worse.
MOYERS: Be sued
by the government?
LEWIS: Be sued
by the government and otherwise ruined professionally. That is the most
incredible kind of courage. And I have an incredible respect for anyone who
does that.
MOYERS: I should
make this clear this is not marked "Top Secret" — this is not a
classified document. It is stamped "Confidential" but nobody is
betraying the Secrets Act.
LEWIS: Yeah,
that's right, I mean, I've — I'm glad to say that that's right.
MOYERS: There
was a story this week in Congressional Quarterly, which is a very respected
non-partisan journal in Washington. It says "Pentagon's proposed changes
strike some as difficult, dangerous and destabilizing." And one of the
things Donald Rumsfeld wants is wavers of environmental laws so that troops can
conduct more "realistic exercises."
And then this
magazine, which is non-partisan, says this is part of the administration's
broad campaign to run the federal government more like a private business. And
with private businesses you have more control over employees, you have more
control over information. Do you see that developing as a syndrome of this
administration?
LEWIS: I think
it's incredible what's happening. I see a wholesale assault on access to
information in this country that has not really been seen, I have to just say
it, since Richard Nixon.
When you look at
the roll-backs of freedom of information, when you look at things like meeting
with energy companies with the Vice President. It's simple things though in
government property with government officials getting paid by taxpayer money
and it's not available to the public.
When you see
some of the things that we have talked about earlier with reporters from
detainees to military actions not being able to see things. I see a lot of very
aggressive behavior by government officials towards the act of getting
information out and information itself. I think that we're in a very unusual
situation right now. And it really worries me actually.
MOYERS: Chuck
Lewis, Center for Public Integrity, thank you very much.
LEWIS: Thank
you.
4) Justice Dept.
Drafts Sweeping Expansion of Anti-Terrorism Act
By Charles Lewis
and Adam Mayle
Center for
Public Integrity
February 7, 2003
http://www.publici.org/dtaweb/report.asp?ReportID=502&L1=10&L2=10&L3=0&L4=0&L5=0&Task=Print
(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.”
5) US Dept. of
Justice Response to NOW/Center for Public Integrity Report
http://www.pbs.org/now/politics/03-082-opa.pdf
FOR IMMEDIATE
RELEASE OPA
FRIDAY, FEBRUARY
7, 2003 (202) 616-2777
WWW.USDOJ.GOV
TDD (202) 514-1888
STATEMENT OF
BARBARA COMSTOCK,
DIRECTOR OF
PUBLIC AFFAIRS:
“The President
expects all his cabinet departments that are involved in homeland security,
including the Department of Justice, to make sure we are doing everything we can
to protect the American people. It should not be surprising that the Department
of Justice takes that responsibility seriously and discusses additional tools
to protect the American people. We are continually considering anti-terrorism
measures and would be derelict if we were not doing so. The Department's deliberations
are always undertaken with the strongest commitment to our Constitution and
civil liberties.
“We are
continually asking our field prosecutors, investigators and experts what tools
they need to prevent future acts of terrorism. During our internal
deliberations, many ideas are considered, some are discarded and new ideas
emerge in the process along with numerous discussion drafts. 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.”