As recently as Feb. 3, Justice Department staffers had been telling Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, that despite rumors to the contrary, they were not drafting any legislation that would further expand the controversial powers given to the government in the USA PATRIOT Act.
Then, last Friday afternoon, the Center for Public Integrity posted a Jan. 9 memo leaked from the Justice Department that seemed to undermine the assurances given to Leahy. The memo describes far-reaching proposals that, if enacted, would give the government and law enforcement broader powers in preventing future terrorist attacks. But to achieve that aim, the government would be authorized to expand surveillance powers and secretly arrest and detain American citizens, and to create a DNA bank of suspected terrorists. In some cases, Americans could lose their citizenship for belonging to groups deemed terrorist fronts.
The document has alarmed many on both the left and the right, and has created odd alliances that seem to only rear their heads when civil liberties are being taken away in the interest of national security.
"It worries me, it worries me a great deal," says former Rep. Bob Barr, a conservative Georgia Republican who was a House manager for the impeachment proceedings against President Bill Clinton, and who is now a consultant for the American Civil Liberties Union.
The initial draft of the USA PATRIOT Act asked for "all sorts of powers far beyond what any normal person would deem necessary to fight terrorist acts," Barr says. "They got an awful lot of what they asked for. Now, just a year and a half later -- without the opportunity to even digest the enormous powers they got in the PATRIOT Act -- apparently they're getting ready to draft another bill to get more powers that go far beyond what was in the PATRIOT Act."
Leahy, usually Barr's polar political opposite, wasn't entirely surprised that the bill was being drafted, despite repeated denials from Attorney General John Ashcroft's Justice Department. He never quite believed them, but it still made him angry.
"If there is going to be a sequel to the USA PATRIOT Act, the process of writing it should be open and accountable," he said Monday. "It should not be shrouded in secrecy, steeped in unilateralism or tinged with partisanship."
After a Monday afternoon speech, Ashcroft was asked about the draft. "Every day we are asking each other, what can we do to be more successful in securing the freedoms of America and sustaining the liberty, the tolerance, the human dignity that America represents," he said, "and how can we do a better job in defeating the threat of terrorism." The memo was merely evidence that over at the Robert F. Kennedy Justice Department Building, they ask those questions "on a daily basis," he said.
Justice Department spokeswoman Barbara Comstock, meanwhile, told Salon that the current controversy is much ado about nothing. The 120-page draft of the "Domestic Security Enhancement Act of 2003," nicknamed PATRIOT II, is "still being evaluated and critiqued," she says. "There is no final proposal. And we make no apologies. Terrorists are constantly changing how they operate and deal with the realities out there and we want to do likewise."
The story of the draft legislation got a bit of attention over the weekend. But the story grew legs Monday; by the afternoon the CPI Web site had received more than a quarter of a million hits. All over Washington, liberals and conservatives found common cause in perusing the draft, labeled "Confidential -- Not For Distribution," making notes on what they didn't like and documenting powers they think go too far.
David Keene, chairman of the American Conservative Union, said that his organization was "particularly concerned about the parts that pertain to U.S. citizens." Keene added that his group's executive director, former U.S. attorney Steve Thayer, was going over the document page by page, taking notes on what the group planned on lobbying against if and when the bill hits the Hill.
Sen. Russell Feingold, D-Wis., the only senator to vote against the last USA PATRIOT Act, issued a statement saying that he would "carefully review it and hope the Senate will give this bill more scrutiny than it did the first USA PATRIOT bill," but would not comment until he had a chance to further review the document.
Feingold, a member of the Senate Judiciary Committee, did note that he was "concerned about the representation to me in the past that seemed to suggest that such a bill was not in the works."
The few who had read the draft did not greet it warmly. "It's a pretty extreme proposal," says David Cole, a Georgetown University School of Law professor asked by the Center for Public Integrity to review the document. "It gives the attorney general virtually unchecked authority to strip U.S. citizens of their citizenship based on their connections to organizations designated terrorist by the attorney general or the secretary of state," Cole said. PATRIOT II would also create a DNA database for a broad range of people, Cole added, "including those merely suspected of being members of terrorist groups."
The American Conservative Union was very involved in lobbying against the broadest-reaching provisions in the first USA PATRIOT Act, particularly on the House side, but was disappointed in the final outcome of the bill. "The Senate, the administration and the Justice Department rolled the House," Keene says. "They acquiesced on just about everything."
Keene doesn't anticipate a similar response should this draft be introduced. "The attitude the Justice Department is likely to confront on the Hill is one of greater skepticism than the one they encountered in the immediate aftermath of Sept. 11," he said. "The idea that you can just request these things and get them, that day is over."
How far along the draft has come is a matter for debate. Democratic congressional staffers echo Cole, who says "it's a very final product." Comstock has referred to the document as "an early draft." When asked Monday how far along the draft was, Ashcroft waxed philosophical, replying that "the idea about improving our position is a stage of continuous effort, and it will never be an idea that is totally completed."
But last Friday, PBS's "NOW with Bill Moyers" featured a copy of a Jan. 10, 2003, memo from the Justice Department's office of legislative affairs to Vice President Dick Cheney and House Speaker Dennis Hastert, R-Ill., asking for their feedback on a "draft legislative proposal entitled the 'Domestic Security Enhancement Act of 2003.'" According to that memo, Cheney and Hastert's feedback was due by close of business on Jan. 13. But Cheney spokeswoman Jennifer Millerwise disputes that her boss has seen a draft. "They didn't send a copy to us," she said. Hastert spokesman John Feehery also said "we never got it."
Comstock says that the confusion was caused because the tracking sheet, as a matter of bureaucracy, is stapled to the document and it lists Cheney, who as vice president is also president of the Senate, and House Speaker Hastert, in preparation for when the bill is ready. Because of the "inane ways of legislative affairs and how they've been doing things for years," Comstock says, the tracking sheet might be attached to the draft but that doesn't mean the draft has even left the building. As for when it will leave the building, Comstock refused to give a date, allowing that it could be a matter of hours or months.
Regardless, the fact that the proposal is so far along in its drafting says to Leahy spokesman David Carle that "it's clear that they want to handle it unilaterally -- unlike the last PATRIOT Act." And Cole theorizes aloud what many Democrats whisper off the record -- that the Justice Department was waiting to introduce the legislation "at a time that is more propitious toward getting the legislation passed quickly, when there's less reason and opportunity to debate," Cole said. "Namely, after we go to war with Iraq."
"It's quite typical for people to play politics with the timing of introducing legislation," Cole allowed. "But it's one thing to play politics with a farm bill, and quite another to do so with a bill that would radically transform the rights and liberties of American citizens."
The draft legislation would make a number of changes in the law. It would amend the law so that authorizations for electronic surveillance would apply to devices in broad terms, such as the e-mails of a cellphone, or Internet phone services from a computer. Ashcroft will be able to authorize immediate autopsies "when necessary and appropriate" to get the results quickly. It will ease the burden for federal agents who wish to obtain citizens' credit reports. It would revise the Clean Air Act, no longer requiring that companies using potentially dangerous chemicals alert the Environmental Protection Agency about "worst case scenarios." Such reports "are a roadmap for terrorists," the draft states.
One category in the draft of PATRIOT II that seems to be causing the most alarm involves changes in Title III, which is the general law used to wiretap American citizens. Under the proposed amendments to the USA PATRIOT Act, if law enforcement officials judge a situation to be a terrorist matter, any American involved would be -- according to a Democratic congressional staffer -- "essentially exempted from the Fourth Amendment," which is supposed to protect against unreasonable searches and seizures.
These changes would weaken judicial supervision of wiretaps: extending the period of time law enforcement can use a wiretap without reporting back to the designated judge from 30 to 90 days; eliminating the interim reports federal agents are required to file with judges reporting on the status of the wiretaps; and minimizing the requirement that law enforcement inform suspects that they have been wiretapped after the monitoring is over.
Democrats expressed annoyance when the push for the broader surveillance powers granted in the USA PATRIOT Act was justified by the desire to keep closer tabs on foreigners in wartime. But changes in Title III affect American citizens.
The law would also change aspects of the Foreign Intelligence Surveillance Act, which allows government monitoring of foreign nationals in America for suspected espionage or terrorist activities. It would expand Ashcroft's authority to invoke emergency FISA warrants where no judicial permission is needed.
It would change the definition of a "foreign power" to include individuals, invoking what Sens. John Kyl, R-Ariz., and Chuck Schumer, D-N.Y., have referred to as the "Moussaoui Fix," since in their view the FBI's investigation into the alleged "20th hijacker," Zacarias Moussaoui, was hampered by the "foreign power" definition. (Others dispute this, noting that the real problem, as specified by FBI whistleblower Colleen Rowley, was that FBI brass didn't have its act together. Rowley's famous memo to FBI Director Robert Mueller III doesn't put the blame on the lack of laws, but rather on FBI bureaucrats in Washington, putting up roadblocks and failing to review her memo as well as one from Phoenix FBI Special Agent Kenneth J. Williams that questioned why so many fishy-seeming Middle Easterners were enrolled at U.S. flight schools.)
The Justice Department is also seeking to create rights that the judiciary has ruled it doesn't have. DOJ has lost a few court cases recently involving its right to arrest and detain suspects without releasing their names. The new law would grant the government such powers. Yes, this would presume that someone is guilty when they have yet to be proven so. But, the memo states, "(t)his 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 engaged in by groups -- many with international connections -- that are often in position to help their members flee or go into hiding."
This would presumably have prevented such losses in court as when, in September 2002, U.S. District Judge Nancy Edmunds ruled that, by conducting his detention hearing in secret, the government had denied due process rights to Rabih Haddad, who had overstayed his visa and is accused of helping finance terrorism. Edmunds, appointed by the former President George Bush in 1992, had also ordered the government to allow reporters to attend Haddad's immigration hearings, a ruling affirmed last summer by the 6th Circuit Court of Appeals in Cincinnati.
Like many if not most laws circulating on Capitol Hill, PATRIOT ACT II also includes a hodgepodge of provisions which, standing on their own, might be laughed out of a Senate chamber. One such tidbit in PATRIOT II would exempt individuals who receive Secret Service protection from being taxed on the value of their security details. Another provision would grant civil court immunity for corporations that violate national security laws as long as the corporation comes forward and volunteers the information. For instance, if an airline employee realizes that he allowed a gun onto a flight because he was negligent for some reason, as long as he and the airline for which he works come forward and admit the goof, they will be immune from any civil suit.
Like much of this bill, that provision was introduced before -- during the September 2001 debate over the airplane security bill -- and was not passed into law.
Justice Department spokeswoman Comstock reiterated that nothing from the draft proposal is formal, that it's all being collected and discussed and vetted. In general, she says, "we have had a very good track record in our cases and the USA PATRIOT Act being held up in court."
Ashcroft, meanwhile, was all smiles on Monday when the Justice Department announced that Enaam Arnaouot, the 41-year-old Syrian-born executive director of Benevolence International Foundation, pleaded guilty to racketeering conspiracy. On the day his trial was to begin, Arnaouot admitted that he fraudulently collected charitable donations in order to provide financial assistance to persons engaged in violent activities overseas, specifically in Chechnya and Bosnia.
Still, as of Monday, there was no organized Democratic opposition to this draft legislation. Senate Minority Leader Tom Daschle, D-S.D., released a letter he'd written to the White House protesting the president's support for private-school vouchers. House Minority Leader Nancy Pelosi, D-Calif., and Democratic National Committee chairman Terry McAuliffe issued statements condemning recent remarks Rep. Howard Coble, R-N.C., made in favor of World War II-era Japanese internment camps.
At a Monday speech at the Conference on Foreign Relations, Ashcroft said that "as freedom-loving nations, we now find ourselves in the midst of an historic struggle for the values of democracy ... Let history record that we, together -- this people and this generation -- defended freedom in its hour of great danger."