Patriot Act II – is it a prudent step to stem terrorist activity in the U.S. and protect the homeland, or a Draconian measure designed to strip the last vestiges of freedom from the American landscape?
Such is the question increasingly on the minds of Internet users, many of whom come down squarely on the side of legal experts who warn of the legislation’s danger. Though an actual bill to further expand federal law-enforcement powers has not been introduced, activists for months have communicated online about what they see as potential Nazi-like developments.
The first USA Patriot Act – or the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act – was passed in 2001 in the aftermath of the September 11 terrorist attacks. It gave federal authorities new power to wiretap phones, confiscate property of suspected terrorists, spy on residents and conduct searches. Its importance to the war on terror was stressed to members of Congress at that time – most of whom were not allowed to read the bill before it was passed, noted Rep. Ron Paul, R-Texas, a Patriot Act opponent.
Though Patriot Act II has not been officially introduced in Congress, a Department of Justice draft version of the bill, named the Domestic Security Enhancement Act, was obtained in January 2003 by the Center for Public Integrity, a nonprofit investigative organization. The draft [a .pdf document] is marked “Confidential, not for distribution.” The document includes an analysis of the expanded powers and a draft of the bill itself.
Also in January 2003, the PBS program “Now with Bill Moyers” obtained a Department of Justice Office of Legislative Affairs “control sheet,” which suggested a draft of the bill was sent to Speaker of the House Dennis Hastert and Vice President Richard Cheney.
According to the Center for Public Integrity, however, Barbara Comstock, director of public affairs for the Justice Department, denied that the early draft had been sent to Hastert and Cheney.
Dr. David Cole, a Georgetown University Law professor, analyzed the draft and stated the proposal 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.”
The Bush administration has shunned attempts by critics to link the original Patriot Act to his request for expanded law-enforcement powers.
When asked if there was a connection between the two, White House spokesman Scott McClellan said, “I don’t know if I’d view it that way.”
Opponents of new powers – who dubbed the draft bill “Patriot Act II” – say the administration is simply trying to deflect criticism from civil libertarians by distancing any new proposals from the original 2001 law. Though members of the administration do not use the term “Patriot Act II” publicly, the president himself was forced to respond to a questioner using that name in the town-hall format debate this fall with Democrat John Kerry.
The American Civil Liberties Union has analyzed the draft of the bill and lists several new government powers it would establish. Those include:
- The removal of the requirement to disclose the identity of anyone who is charged in a terror-related investigation until that person is charged, regardless of how long it may take;
- Creating a new category of “domestic security surveillance” that permits electronic eavesdropping of entirely domestic activity under looser standards than are provided for ordinary criminal surveillance;
- Repealing the current court limits on local police spying on religious and political activity;
- The ability to obtain credit records and library records without a warrant;
- Expansion of the definition of terrorism whereby individuals engaged in civil disobedience could risk losing their citizenship, and their organization could be subject to wiretapping and asset seizure;
- Sheltering federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials;
- Americans could be extradited, searched and wiretapped at the behest of foreign nations, whether or not treaties allow it; and
- Lawful immigrants would be stripped of the right to a fair deportation hearing and federal courts would not be allowed to review immigration rulings.
The ACLU also points out the proposal would lessen the ability of the media to cover government activity by shutting down access to information about terrorism suspects who have not been charged, information about grand jury proceedings involving terror investigations, and public information about health and safety hazards of chemical and other plants.
Critics stress that Section 102 of the draft bill, which expands who it is the government can subject to surveillance, could also squelch press freedoms. Current law says a U.S. citizen gathering information for a foreign entity can be wiretapped, for example, only if there is a suspicion of a violation of the law. The new measure would remove the need for suspicion, thereby applying to citizens the current standard used with non-citizens.
“This amendment would permit electronic surveillance of a local activist who was preparing a report on human rights for London-based Amnesty International, a ‘foreign political organization,’ even if the activist was not engaged in any violation of law,” stated the ACLU.
While a provision in the original Patriot Act gave the Justice Department the power to look at public library records, criticism of the provision caused Attorney General John Ashcroft to back away from actually using the new privilege. The ACLU analysis touches on an expansion of the power, saying, “Patriot Act II would give the government new powers to issue ‘administrative subpoenas’ and to enforce what it calls ‘national security letters’ to obtain confidential library, Internet and bookstore records – without going to court at all.”
In September, U.S. District Judge Victor Marrero sided with the ACLU by ruling Section 505 of the Patriot Act was a violation of free-speech rights and unreasonable search-and-seizure protections. That section gave the FBI power to search customer records from communication firms such as Internet service providers.
ACLU Executive Director Anthony D. Romero told the Washington Times the ruling was “especially important” in light of efforts to further increase law-enforcement via Patriot Act II.
“This decision should put a halt to those efforts,” he told the paper.
Opponents of the Patriot Act II within Congress also are fighting against the proposal. Rep. Dennis Kucinich, D-Ohio, along with Paul and others, has introduced H.R. 3171, the Benjamin Franklin True Patriot Act. The bill uses Franklins famous quote “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” in arguing against both the Patriot Act and the proposed expansion.
The bill claims Patriot Act II would “severely dilute and undermine many basic constitutional rights as well as disturb our unique system of checks and balances by:
- “diminishing personal privacy by removing important checks on government surveillance authority;
- “reducing the accountability of government to the public by increasing government secrecy;
- “expanding the definition of ‘terrorism’ in a manner that threatens the constitutionally protected rights of Americans; and
- “seriously eroding the right of all persons to due process of law.”
The bill says the new powers pose threats “to all Americans and particularly to the civil rights and liberties of the residents of our nation who are Arab, Muslim, or of South Asian descent.”
Kucinich’s legislation would repeal entire sections of the Patriot Act and other homeland security laws passed since 9-11.
Writing in the Village Voice, columnist Nat Hentoff hammers the Bush administration for wanting to make Patriot Act provisions permanent before a December 2005 “sunset clause” takes effect. Hentoff is hoping an alliance “between civil-liberties Democrats and conservative-Republican libertarians” in the Senate will help end Patriot Act provisions and derail Patriot Act II.
Ashcroft has lobbied for additional powers in recent months, including during a warning about possible terror attacks last Independence Day.
He said the changes made by the Patriot Act in the years since 9-11 gave government agencies the ability to share information, but that investigators still need additional powers.
With the nomination of Alberto Gonzales to replace Ashcroft as attorney general, the president’s tactics in pursuing expanded law-enforcement powers could change. Repeated calls to the Justice Department for comment on the issue were not returned.