[A-List] Fw: Here's Pat II the end of the trilogy

["Christopher Black" <bar@xxxxxxxxxxx>]

Sent: Tuesday, March 11, 2003 2:33 PM
Subject: Here's Pat II the end of the trilogy


March 11, 2003

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Special Report
Justice Dept. Drafts Sweeping Expansion of Anti-Terrorism Act
Center Publishes Secret Draft of OPatriot II¹ Legislation

By Charles Lewis and Adam Mayle



(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 ³the Patriot Act II² in legislative parlance.

³We haven¹t heard anything from the Justice Department on updating the
Patriot Act,² House Judiciary Committee spokesman Jeff Lungren told the
Center. ³They haven¹t shared their thoughts on that. Obviously, we'd be
interested, but we haven¹t heard anything at this point.²

RELATED DOCUMENTS
    The draft of the Domestic Security Enhancement Act of 2003 (12 MB)
    The Office of Legislative Affairs ³control sheet² which shows that a
copy of the bill was sent to Speaker Hastert and Vice President Cheney
    Read the Justice Department's response to this report. 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 Justice¹s Office of Public Affairs, told
the Center his office was unaware of the draft. ³I have heard people talking
about revising the Patriot Act, we are looking to work on things the way we
would do with any law,² he said. ³We may work to make modifications to
protect Americans,² he added. When told that the Center had a copy of the
draft legislation, he said, ³This is all news to me. I have never heard of
this.²



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."

RELATED LINKS
    For additional information, watch the PBS program "Now With Bill
Moyers" tonight at 9 P.M. EST. (Check local listings.) The show will also
air an interview with Charles Lewis. An Office of Legislative Affairs
³control sheet²  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. ³Attached
for your review and comment is a draft legislative proposal entitled the
ODomestice Security Enhancement Act of 2003,¹² the memo, sent from ³OLP² 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 ³raises a lot of serious concerns.
It¹s troubling that they have gotten this far along and they¹ve been telling
people there is nothing in the works.² This proposed law, he added, ³would
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 Osuspicion,¹
create new death penalties, and even seek to take American citizenship away
from persons who belong to or support disfavored political groups.²

Some of the key provision of the Domestic Security Enhancement Act of 2003
include:

Section 201, ³Prohibition of Disclosure of Terrorism Investigation Detainee
Information²: Safeguarding the dissemination of information related to
national security has been a hallmark of Ashcroft¹s 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, ³protecting
sensitive business information and, not least, preserving personal privacy²
into account while deciding on requests, the proposed legislation would
enhance the department¹s ability to deny releasing material on suspected
terrorists in government custody through FOIA.

Section 202, ³Distribution of OWorst Case Scenario¹ Information²: 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 ³worst
case scenario² 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 bill¹s drafters refer to as ³a roadmap for terrorists.² By reducing
public access to ³read-only² methods for only those persons ³who live and
work in the geographical area likely to be affected by a worst-case
scenario,² this subtitle would obfuscate an established level of
transparency between private industry and the public.

Section 301-306, ³Terrorist Identification Database²: These sections would
authorize creation of a DNA database on ³suspected terrorists,² 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, ³Appropriate Remedies with Respect to Law Enforcement
Surveillance Activities²: 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, ³Presumption for Pretrial Detention in Cases Involving
Terrorism²: 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. ³This 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.²

Section 501, ³Expatriation of Terrorists²: This provision, the drafters say,
would establish that an American citizen could be expatriated ³if, 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
Oterrorist organization¹.² But whereas a citizen formerly had to state his
intent to relinquish his citizenship, the new law affirms that his intent
can be ³inferred from conduct.² Thus, engaging in the lawful activities of a
group designated as a ³terrorist organization² 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 ³foreign
intelligence² 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 ³foreign
intelligence² 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 ³foreign intelligence² was a
³significant purpose² rather than the ³primary purpose² of an investigation.

The draft legislation goes further in that direction. ³In the [USA Patriot
Act] we have to break down the wall of foreign intelligence and law
enforcement,² Cole said. ³Now they want to break down the wall between
international terrorism and domestic terrorism.²

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, ³looking 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.²

Asked by Sen. Russ Feingold (D-Wis.) whether she could inform the committee
of what specific areas Justice was looking at, Fisher replied, ³At this
point I can¹t, I¹m sorry. They're studying a lot of different ideas and a
lot of different tools that follow up on information sharing and other
aspects.²

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 ³an ongoing process to continue evaluating and re-evaluating authorities
we have with respect to counterterrorism,² 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.
³First of all, the Attorney General has to justify fully what he¹s asking
for,² Sessions, who served presidents Reagan and George H.W. Bush as FBI
Director from 1987 until 1993, said at the time. ³We need to be sure that we
provide an effective means to deal with criminality.² At the same time, he
said, ³we need to be sure that we are mindful of the Constitution, mindful
of privacy considerations, but also meet the technological needs we have² to
gather intelligence.

Cole found it disturbing that there have been no consultations with Congress
on the draft legislation. ³It 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
they¹re 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 they¹ll have a much stronger hand in saying that they need
these right away.²