PATRIOT II... is it for you? Meaning, will they come and take you away?

PATRIOT II... is it for you? Meaning, will they come and take you away?

Interested Persons Memo: Section-by-Section Analysis of Justice Department draft Domestic Security Enhancement Act of 2003,also known as PATRIOT Act II

February 14, 2003

To: Interested Persons
From: Timothy H. Edgar, Legislative Counsel
Date: February 14, 2003
Re: Section-by-Section Analysis of Justice Department draft Domestic Security Enhancement Act of 2003,also known as Patriot Act II

The Department of Justice (DOJ) has been drafting comprehensive anti-terrorism legislation for the past several months. The draft legislation, dated January 9, 2003, grants sweeping powers to the government, eliminating or weakening many of the checks and balances that remained on government surveillance, wiretapping, detention and criminal prosecution even after passage of the USA PATRIOT Act, Pub. L. No. 107-56, in 2001.

Among its most severe problems, the bill

Diminishes personal privacy by removing checks on government power, specifically by

Making it easier for the government to initiate surveillance and wiretapping of U.S. citizens under the authority of the shadowy, top-secret Foreign Intelligence Surveillance Court. (Sections 101, 102 and 107)

Permitting the government, under certain circumstances, to bypass the Foreign Intelligence Surveillance Court altogether and conduct warrantless wiretaps and searches. (Sections 103 and 104)

Sheltering federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials. (Section 106)

Creating a new category of domestic security surveillancethat permits electronic eavesdropping of entirely domestic activity under looser standards than are provided for ordinary criminal surveillance under Title III. (Section 122)

Using an overbroad definition of terrorism that could cover some protest tactics such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico as a new predicate for criminal wiretapping and other electronic surveillance. (Sections 120 and 121)

Providing for general surveillance orders covering multiple functions of high tech devices, and by further expanding pen register and trap and trace authority for intelligence surveillance of United States citizens and lawful permanent residents. (Sections 107 and 124)

Creating a new, separate crime of using encryption technology that could add five years to any sentence for crimes committed with a computer. (Section 404)

Expanding nationwide search warrants so they do not have to meet even the broad definition of terrorism in the USA PATRIOT Act. (Section 125)

Giving the government secret access to credit reports without consent and without judicial process. (Section 126)

Enhancing the governments ability to obtain sensitive information without prior judicial approval by creating administrative subpoenas and providing new penalties for failure to comply with written demands for records. (Sections 128 and 129)

Allowing for the sampling and cataloguing of innocent Americansgenetic information without court order and without consent. (Sections 301-306)
Permitting, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement. (Section 311)

Terminating court-approved limits on police spying, which were initially put in place to prevent McCarthy-style law enforcement persecution based on political or religious affiliation. (Section 312)

Permitting searches, wiretaps and surveillance of United States citizens on behalf of foreign governments ? including dictatorships and human rights abusers ? in the absence of Senate-approved treaties. (Sections 321-22)

Diminishes public accountability by increasing government secrecy; specifically, by

Authorizing secret arrests in immigration and other cases, such as material witness warrants, where the detained person is not criminally charged. (Section 201)

Threatening public health by severely restricting access to crucial information about environmental health risks posed by facilities that use dangerous chemicals. (Section 202)

Harming fair trial rights for American citizens and other defendants by limiting defense attorneys from challenging the use of secret evidence in criminal cases. (Section 204)

Gagging grand jury witnesses in terrorism cases to bar them from discussing their testimony with the media or the general public, thus preventing them from defending themselves against rumor-mongering and denying the public information it has a right to receive under the First Amendment. (Section 206)
Diminishes corporate accountability under the pretext of fighting terrorism; specifically, by

Granting immunity to businesses that provide information to the government in terrorism investigations, even if their actions are taken with disregard for their customersprivacy or other rights and show reckless disregard for the truth. Such immunity could provide an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcrofts "Operation TIPS". (Section 313)

Undermines fundamental constitutional rights of Americans under overbroad definitions of terrorismand terrorist organizationor under a terrorism pretext; specifically by

Stripping even native-born Americans of all of the rights of United States citizenship if they provide support to unpopular organizations labeled as terrorist by our government, even if they support only the lawful activities of such organizations, allowing them to be indefinitely imprisoned in their own country as undocumented aliens. (Section 501)

Creating 15 new death penalties, including a new death penalty for "terrorism" under a definition which could cover acts of protest such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico, if death results. (Section 411)

Further criminalizing association ? without any intent to commit specific terrorism crimes ? by broadening the crime of providing material support to terrorism, even if support is not given to any organization listed as a terrorist organization by the government. (Section 402)

Permitting arrests and extraditions of Americans to any foreign country ? including those whose governments do not respect the rule of law or human rights ? in the absence of a Senate-approved treaty and without allowing an American judge to consider the extraditing countrys legal system or human rights record. (Section 322)
Unfairly targets immigrants under the pretext of fighting terrorism; specifically by

Undercutting trust between police departments and immigrant communities by opening sensitive visa files to local police for the enforcement of complex immigration laws. (Section 311)

Targeting undocumented workers with extended jail terms for common immigration offenses. (Section 502)

Providing for summary deportations without evidence of crime, criminal intent or terrorism, even of lawful permanent residents, whom the Attorney General says are a threat to national security. (Section 503)

Completely abolishing fair hearings for lawful permanent residents convicted of even minor criminal offenses through a retroactive expedited removalprocedure, and preventing any court from questioning the governments unlawful actions by explicitly exempting these cases from habeas corpus review. Congress has not exempted any person from habeas corpus -- a protection guaranteed by the Constitution -- since the Civil War. (Section 504)

Allowing the Attorney General to deport an immigrant to any country in the world, even if there is no effective government in such a country. (Section 506)

Given the bipartisan controversy that has arisen in the past from DOJs attempts to weaken basic checks and balances that protect personal privacy and liberty, the DOJs reluctance to share the draft legislation is perhaps understandable.

The DOJs highly one-sided section-by-section analysis reveals the Administrations strategy is to minimize far-reaching changes in basic powers, as it did in seeking passage of the USA PATRIOT Act, by characterizing them as minor tinkering with statutory language designed to bring government surveillance authorities, detention and deportation powers, and criminal penalties up to date.