Secrets and Lies
Leaked documents describe
Patriot Act II
by Naureen Shah
In These Times magazine.
Like the big-budget movie sequel kept
under wraps for months and rumored to be much worse than the original,
what has been called Patriot Act 11 is making headlines months
6efore its release. In February, the Center for Public Integrity,
a watchdog group, announced it had received a leaked copy of draft
legislation that details significant expansions to the already
notorious 2001 USA Patriot Act.
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 of ficials. 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
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-tertotism 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 over sight. "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
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 1etter to Attomey 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 intemal 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 shellshocked 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 Tlm Edgar, legislative counsel for the ACLU.
"Does this bring us a lot closer to 1984? Absolutely."