Taking Liberties in the War on Terror (Rutherford Institute)

Taking Liberties in the War on Terror: The Justice Department's “Patriot
Act II”

By Steven H. Aden

In the days following September 11th, the Bush Administration made a calculated
decision to view the attacks on the World Trade Center and the Pentagon as
acts of war by foreign aggressors, rather than criminal acts that required
redress by the justice system. “We are at war,” the nation’s
chief law enforcement officer, Attorney General John Ashcroft, told the United
States Senate on September 25th. The resources of all federal law enforcement
agencies were being marshaled for one “first and overriding priority,"
Ashcroft said, “defending our nation and its citizens against terrorist
attacks.” In response to Ashcroft’s plea for “the tools
to fight terrorism,” Congress quickly ushered through the USA Patriot
Act of 2001, which gave broad and virtually unprecedented powers to the Justice
Department, FBI, CIA and other federal law enforcement agencies to conduct
searches of homes and offices without prior notice, use roving wiretaps to
listen in on telephone conversations, and monitor private computer Internet
site visits and e-mail messages. (For an extensive constitutional analysis
of the USA Patriot Act, see The Rutherford Institute’s “Forfeiting
‘Enduring Freedom’ for ‘Homeland Security’”.
[PDF])

Despite heavy fire from members of the public and civil rights watchdog organizations
such as The Rutherford Institute, the ACLU and the Center for Democracy and
Technology, the ink was hardly dry on the Patriot Act when the Justice Department
began to chafe again under the “restrictions” imposed on law enforcement
by decades-old privacy laws such as the Wiretap Act and the Privacy Act. Rumors
had already been circulating on Capitol Hill of a “Patriot Act II”
when in early January of this year a top-secret Justice Department memo and
accompanying draft of the “Domestic Security Enhancement Act of 2003”
was leaked to the Washington-based Center for Public Integrity. The proposed
legislation would go far beyond even the Patriot Act in granting broad powers
to the Attorney General to conduct electronic surveillance of U.S. citizens,
search and seize homes and businesses absent probable cause, and arrest and
deport persons accused of supporting terrorism. Although a Justice Department
spokesperson said the draft bill was only for in-house discussion and denied
it had been sent for review by Congress, a routing slip obtained by a PBS
reporter appears to confirm that the Justice Department’s Office of
Legal Policy had sent the draft bill to House Majority Leader Dennis Hastert
and Vice President Dick Cheney “for review and comment” on January
10th, the day after the memo was drafted. It thus appears that the bill is
already in the preliminary stages of review in Congress and at the White House,
and absent strenuous opposition from congressional leadership and the American
public, will be introduced shortly in substantially the same form and earmarked
for the same “fast-track” treatment as its predecessor, the Patriot
Act.

The Domestic Security Enhancement Act (DSEA) first seeks to redefine the
very terms of engagement in the “War on Terror" in order to broaden
the scope of the Bush Administration’s “war-fighting powers.”
Sections 121 and 122 of the draft bill amend the Wiretap Act and the restrictions
relating to surveillance via pen register (which records outgoing telephone
numbers dialed) and trap and trace devices (which record incoming telephone
numbers) to eliminate the last vestiges of a distinction between international
terrorism and “domestic terrorism,” thereby granting far broader
surveillance powers to law enforcement for a wide range of crimes. Section
402 would expand the current definition of the crime of providing material
support to terrorists to reach potentially any kind of financial or informational
support, direct or indirect, of organizations designated as “terrorist”
(domestic or foreign—without requiring that the accused intended the
support. Sections 303 and 304 of the bill add a new definition of “suspected
terrorist” for the purpose of maintaining a DNA database of such individuals,
and allow an individual to be included in the database at the Attorney General’s
sole direction and discretion. Collateral provision 302 provides a circular
definition of a “suspected terrorist”—a “person suspected
of being a member of a terrorist organization.”

The bill also amends the procedures of the secret Foreign Intelligence Surveillance
Act (FISA) court, which is a secret court consisting of eleven federal judges
appointed by the Chief Justice of the Supreme Court to grant surveillance
requests on an expedited basis and on less than probable cause where the target
is a “foreign power” or an “agent of a foreign power.”
Sections 101 and 102 redefine a “foreign power” and an “agent
of a foreign power” to include not only groups that engage in international
terrorism, but “unaffiliated individuals who do so.” Thus, the
reach of the FISA’s secret warrant powers would extend to investigations
of any person deemed a “lone wolf” terrorist sympathizer within
the United States.

The draft DSEA would also arrogate new powers to the Attorney General to
disregard fundamental liberties. Under Section 103, the Attorney General’s
authority to authorize warrantless electronic surveillance or physical searches
following a declaration of war under certain existing provisions of Title
50 of the United States Code could be invoked at virtually any time. As the
Justice Department’s secret memo explains:

This wartime exception is unnecessarily narrow; it may be invoked only when
Congress formally has declared war, a rare event in the nation’s history
and something that has not occurred in more than sixty years. This provision
would expand FISA’s wartime exception by allowing the wartime exception
to be invoked after Congress authorizes the use of military force, or after
the United States has suffered an attack creating an [sic] national emergency.

Insofar as Congress has already authorized military action by the President
in the “War on Terrorism,” and the nation certainly suffered “an
attack creating [a] national emergency” on September 11th, this provision
appears to allow the Justice Department to now enter a new regime of warrantless
and unaccountable searches, seizures and surveillance. Similarly, Section
128 expands the Attorney General’s power to issue administrative subpoenas—subpoenas
issued without a court-ordered warrant—whenever the Justice Department
is engaged in investigations of “domestic or international terrorism.”

Other provisions of the DSEA, including Section 501, amend the “expatriation
statute”—the law defining when and under what circumstances an
American citizen can be stripped of citizenship—to provide that “an
American could be expatriated if, with the intent to relinquish nationality,
he becomes a member of, or provides material support to, a group that the
United States has designated as a ‘terrorist organization.’”
Importantly, “[t]his provision would also make explicit that the intent
to relinquish nationality need not be manifested in words, but can be inferred
from conduct.” Thus, whenever a U.S. citizen is accused of “providing
material support” to a terrorist organization, he or she could be subjected
to losing citizenship status and removed from the country. Similarly, Section
503 grants the Attorney General the power to deny admission to the U.S. or
remove from the country any individual that he determines he has “reason
to believe would pose a danger to the national security of the United States.”

The DSEA bill brings the newly granted powers of the Attorney General to
bear on U.S. citizens and lawful residents in many ways. Sections 107 and
109 of the bill would allow the secret FISA court to order pen register and
trap and trace surveillance not only on “non-U.S. persons,” as
it historically has, but now on U.S. citizens as well—as long as (per
the Patriot Act) the Justice Department can claim that obtaining foreign intelligence
information is “a purpose” (among others) of the investigation.
The amendments also provide an enforcement mechanism whereby any person reluctant
to facilitate such spying on Americans can be subjected to sanctions such
as contempt of court proceedings. Section 123 extends the time limits for
certain types of warrants ordered under the Wiretap Act when a “domestic
security investigation” is the subject of the search. Other provisions
grant the Attorney General greatly expanded powers to probe computer systems
and financial records and even to conduct autopsies outside the United States
on victims of violent offenses without the family members’ knowledge
or consent. Finally, Section 409 authorizes the Federal Aviation Administration
to suspend or revoke a pilot’s civil aviation certificate where the
FAA determines that the pilot is “suspected” of posing a risk
to aviation or national security.

The DSEA imposes more egregious restrictions on free speech than even its
predecessor, the Patriot Act. Under “Patriot Act II,” individuals
who receive "administrative subpoenas” from the Justice Department
are prohibited from disclosing that fact to any third party except a lawyer.
Receipt of administrative subpoenas that may be issued by FBI personnel in
national security investigations—so-called “national security
letters”—also cannot be disclosed to the public under existing
law, but disclosures would now carry a potential prison term of up to five
years. Information relating to Environmental Protection Agency “worst
case scenarios” of environmental disasters would be made largely unavailable,
and schematic diagrams of certain government buildings would be sealed. Grand
jury witnesses and persons to whom grand jury subpoenas are directed could
be gagged “in cases where serious adverse consequences may otherwise
result, including danger to the national security.” The Justice Department
would be removed from the burden of complying with all existing court orders
forbidding surveillance of religious organizations (e.g., mosques) that had
been conducted in possible violation of the First Amendment. And in response
to numerous requests under the Freedom of Information Act (FOIA) for information
relating to the status of “detainees” after the 9/11 attacks,
the Justice Department seeks to close that “loophole” by amending
FOIA to deny information “about individuals detained in investigations
of terrorism until disclosure occurs routinely upon the initiation of criminal
charges.”

It is no overstatement to charge that the Justice Department is exhibiting
a wholesale institutional disdain for fundamental constitutional freedoms.
As Georgetown law professor David Cole observes, “The Bush Administration’s
draft Domestic Security Enhancement Act of 2003 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.” (David Cole, “What
Patriot Act II Proposes to Do” [PDF] February 10, 2003.)

There is still room to hope that if the public loudly voices its disapproval
of the Justice Department’s latest attack on civil liberties, as happened
with the now defunct “Total Information Awareness" program, Ashcroft
may be persuaded to abandon attempts to pass a “Patriot Act II.”
A Justice Department official who was recently confronted with the leaked
draft bill and accompanying analysis left room for the Department to back
away, saying, “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.” Please do your part to oppose
any further legislative erosion of civil liberties by clicking on this link
to make
your voice heard by the Justice Department. It is up to the American people
to make sure that the precious liberties enshrined in the Bill of Rights are
not the Bush Administration’s first casualties on the homeland front
of the “War on Terrorism.”