The legislation, allegedly authored by the Department of Justice, has drawn criticism from across the spectrum, with the American Civil Liberties Union and American Conservative Union (ACU) teaming up to denounce key provisions, and some senators issuing frustrated statements in response to the secrecy under which the bill was drafted.
What the White House terms a “review of measures to protect the country,” the ACLU calls a fundamental alteration of constitutional protections. The legislation would authorize secret arrests for the first time in U.S. history as well as criminalize association with organizations deemed terrorist. It would legalize greater secrecy regarding INS detainees and expand the application of the death penalty under a broadened definition of terrorism. If an anti-war protester breaks the law during a demonstration and someone dies as a result, the ACLU says, the protester could face execution.
Among other provisions, the bill would employ the top-secret Foreign Intelligence Surveillance Court—traditionally used only in espionage and international terrorism cases—to allow government surveillance and wiretapping of U.S. citizens. It would exempt federal agents tracking citizens without a court order from criminal prosecution if they were following orders from high executive branch officials. And it would legalize the deportation of lawful permanent residents without evidence of crime or criminal intent if the attorney general labels them a threat to national security.
The proposed act would also permit the cataloging of Americans’ genetic information without their knowledge or consent, allow sensitive personal information about citizens without any connection to anti-terrorism efforts to be shared with local law enforcement, and grant blanket immunity to businesses that report false terrorism tips to the government, even if they do so with reckless disregard for the truth.
The leak comes at a time of growing congressional impatience with the executive branch over lack of consultation and oversight. “Congress is not inclined to give the executive branch more powers after it has been rebuffed by the Department of Justice in its efforts to find out how the Patriot Act has been implemented,” says Nancy Chang of the Center For Constitutional Rights.
The suppression of information about the legislation, called “The Domestic Security Enhancement Act of 2003,” adds insult to injury. Despite numerous requests for information, senior members of the Senate Judiciary Committee were told no such legislation was in the works just days before the Center for Public Integrity released the draft. In a February 10 letter to Attorney General John Ashcroft, Michigan Democrat John Conyers complained that “the handling of this matter [has] only lent credence to suggestions that … the Justice Department is waiting to spring this bill on the Congress when the nation once again has endured a terrorist attack or is in the midst of war.”
A Department of Justice spokeswoman maintains that national security proposals are still in internal deliberations and have not been presented to the White House. However, a memo obtained by the TV show NOW with Bill Moyers implies the draft has already been sent to Vice President Dick Cheney and Speaker of the House Dennis Hastert. In response to a question about the legislation in early February, White House spokesman Ari Fleischer said such measures “are underway in draft form at the Department of Justice. I think you would expect the government to constantly review all measures to protect the country.”
As controversy swirls over the legislation’s concealment, legal and political analysts are gearing up for a fight that was missing during the passage of the first Patriot Act, which surfed through a shell-shocked Senate only weeks after the September 11 attacks. “This gives [critics] days, weeks, months—it takes away the element of surprise,” says Chuck Lewis, the Center’s executive director.
The leak also gives critics from traditionally opposing political camps a chance to shape a powerful coalition. “This is not really ideological,” says ACU chairman Dave Keene, whose group is developing an analysis of the legislation with the ACLU. “This is about skepticism. People on the Hill have had a chance to reflect on what’s needed. [With this] our security would be enhanced, but our freedom would not.”
In further consolidating power in the executive branch, the second Patriot Act undermines civil liberties protections in a way the first Patriot Act never did. Under the new legislation, even “an individual who works to further the lawful ends of a group is assumed to support furthering its unlawful ends,” Chang says. “U.S. citizens who exercise First Amendment rights could conceivably lose their citizenship.”
The draft legislation seems to pit all but the most ardent Bush supporters against any new Department of Justice-sponsored security measures. “The technological capacities the government is acquiring and the removal of basic legal checks move us in a direction that was never possible 20 years ago,” says Tim Edgar, legislative counsel for the ACLU. “Does this bring us a lot closer to 1984? Absolutely.”
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