February 08, 2003

The Center for Public Integrity obtained a draft, dated January 9, 2003, of this previously undisclosed legislation and released the full text to the media and members of Congress. 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 "the Patriot Act II" in legislative parlance.

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

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

• Section 202, "Distribution of 'Worst Case Scenario' Information": 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 "worst case scenario" 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 bill's drafters refer to as "a roadmap for terrorists." By reducing public access to "read-only" methods for only those persons "who live and work in the geographical area likely to be affected by a worst-case scenario," this subtitle would obfuscate an established level of transparency between private industry and the public.

• Section 301-306, "Terrorist Identification Database": These sections would authorize creation of a DNA database on "suspected terrorists," 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, "Appropriate Remedies with Respect to Law Enforcement Surveillance Activities": 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, "Presumption for Pretrial Detention in Cases Involving Terrorism": 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. "This 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."

• Section 501, "Expatriation of Terrorists": This provision, the drafters say, would establish that an American citizen could be expatriated "if, 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 'terrorist organization'." But whereas a citizen formerly had to state his intent to relinquish his citizenship, the new law affirms that his intent can be "inferred from conduct." Thus, engaging in the lawful activities of a group designated as a "terrorist organization" by the Attorney General could be presumptive grounds for expatriation.
  

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Related Links:

• Department of Justice Response (34kb PDF)
  
• Who's Seen It: Office of Legislative Affairs cover sheet for the draft legislation (98kb PDF)
  
• Interview with Chuck Lewis of the Center of Public Integrity (2/07/03 - NOW with Bill Moyers, PBS)
  
• 'ACLU Says New Ashcroft Bill Erodes Checks and Balances on Presidential Power' (2/12/03 - ACLU Press Release)
  
• ACLU: Section-by-section analysis of 'Patriot II' (2/14/03 - ACLU.org) - This analysis reveals that the DOJ's modest descriptions of the powers it is seeking, and the actual scope of the authorities it seeks, are miles apart.
  
• 'USA Patriot Act: A Dreadful Act II' by Yale Law prof. Jack M. Balkin (2/13/03 - LA Times via Common Dreams)
  
• 'If You Like Patriot Act I, Don't Miss the Sequel' (2/16/03 - St. Petersburg [FL] Times)
  
• Perspective: Ashcroft's worrisome spy plans by Declan McCullagh (2/10/03 - News.Com)
  
• New: Ashcroft Denies Existence of Patriot II to Congress (3/06/03 - Politech) - Ashcroft splits hairs and waffles during testimony on March 4, 2003.