Analysts worry about Patriot Act II

By CHRISTIAN BOURGE, UPI Think Tanks Correspondent

WASHINGTON, March 10 (UPI) -- Think tank experts are concerned about indications that the administration of President George W. Bush wants to broaden government powers of domestic intelligence gathering, surveillance, and prosecution beyond the expanded powers granted last year by the USA Patriot Act.

Their worries about further restrictions being placed on constitutionally guaranteed rights in the name of national security were sparked by a draft bill leaked from the Justice Department last month, which detailed plans for a bold and sweeping expansion of the controversial law signed into law in the aftermath of the Sept. 11, 2001, terrorist attacks.


"I am appalled by the draft," Robert Higgs, a senior fellow in political economy at the Independent Institute told United Press International.

"I thought the Patriot Act was atrocious, and adding to it only makes the situation worse," he said. "It (the draft legislation) is the potential embodiment in law of a thorough, ongoing police state apparatus."


The USA Patriot Act gave federal law enforcement officials much broader authority to conduct electronic surveillance and wiretaps, and tightened federal oversight of financial and banking activities. Among the law's many provisions were changes to the Foreign Intelligence Surveillance Act that allow the FBI to share information gathered in terror investigations with local law enforcement -- a reversal of decades of practice.

The leaked draft measure -- "The Domestic Security Enhancement Act of 2003" -- is dated Jan. 9 and has earned the nickname "Patriot Act II."

Although Attorney General John Ashcroft said last week that a final bill has not been developed, the very existence of the Patriot Act II draft has raised red flags. The most contentious provisions in the draft would allow the government to collect DNA from suspected terrorists or other individuals involved in terror investigations, and the power to revoke the citizenship of, and deport, naturalized citizens suspected of terror activities or of providing "material support" to terrorist groups.

Higgs said the denaturalization and deportation provisions are the most egregious components of the draft because they would allow the removal of citizenship without the individual being convicted of a crime, and under terms so broad that almost anything could be defined as an applicable offense.


"In my mind, if that doesn't absolutely epitomize totalitarianism I would like to what does," said Higgs. "They can categorize the most innocent action -- from signing a petition or making a chartable contribution -- as an act of terrorism."

Timothy Lynch, director of the Project on Criminal Justice at the libertarian Cato Institute, said that the citizenship-stripping provisions are important because citizenship has become a determining factor in Justice Department decisions about whether to classify a terror suspect as an enemy combatant.

This classification determines whether someone is given access to counsel and other legal protections afforded by Constitution; is kept in a military brigade and tried in military court; or even sent to the government's overseas holding camps for an indefinite period without prosecution.

"If the government can strip people of their citizenship before they are convicted of a crime, they might do it to send people outside of the civilian court system," said Lynch.

However, there are policy analysts who do not find the Patriot Act II draft problematic.

Michael Scardaville, a policy analyst for homeland security at the conservative Heritage Foundation, said that the citizenship provisions would only codify that those citizens who take up arms against the United States as terrorists would be treated as traitors.


"I don't think you have anyone who disagrees that if someone decided to fight on behalf of (Iraqi leader) Saddam Hussein, or for the former Soviet Union in the Cold War, they no longer consider themselves an American citizen," Scardaville told UPI.

Other problematic provisions in the draft include a measure allowing federal investigators to conduct wiretaps without a court order for 15 days following an attack on the United States, or after congressional approval of the use of military force.

The draft bill would give the government the power to secretly detain citizens and to strictly limit those subpoenaed by a grand jury from speaking about their testimony publicly. The draft bill would also eliminate the 2005 expiration of key intelligence powers provided under the Patriot Act. These sunset provisions were a concession to critics of the bill in Congress.

It addition, the new bill would further ease restrictions on the use of secret evidence in the prosecution of terror cases, and further expand authorization periods for secret government Internet surveillance and wiretaps.

Lynch also said other provisions -- such as one that would immunize federal agents from prosecution when they engage in illegal surveillance acts, and another that would allow for the collection of DNA from anyone connected to an investigation -- are particularly troublesome.


"I think we seem to be slipping into a situation where the government is going to want a comprehensive DNA database on just about everybody," he said. "It is not called for specifically in Patriot II but it seems to be another step toward the government wanting to have a DNA sample from everybody."

Scardaville said that the draft should not be eliciting the level of concern raised by civil libertarians, because it is simply a review of the authority granted to the Justice Department under the Patriot Act. He said that such reviews are important because the United States must continually adapt to the challenges it faces following Sept. 11. And, he said, it remains only a draft.

"We have to evaluate which laws are appropriate and adjust to the paradigm shift," he said. "We did this after World War II and in the years between the two world wars. We did it after the Civil War."

Scardaville said that a provision that places terrorist organizations on a par with foreign governments in the U.S. legal code exemplifies how the Justice Department is only attempting to fix holes in existing law.

He added that a provision that would make information about possible terrorist targets --such as chemical plants -- available solely in read-only format on Web terminals in public reading rooms is an example of where the draft strikes a good balance between the need for public information about such facilities, and national security controls on potentially dangerous information.


Lynch said the notion that the draft was merely a review does not hold water.

"I don't see anything about repealing or surrendering any power that was conveyed under the Patriot Act," he said. "In fact it (the draft) seems to be ideas for accruing more power."

Higgs also said that Patriot Act has shown that limiting civil liberties does little to promote domestic security.

"Although it (the Patriot Act) has had the result of setting aside many established Fourth Amendment protections, it has not played an important role in the government apprehension of terrorists or prevention of terrorists from operating in this country," said Higgs.

Lynch added that although the draft bill has little chance of passage if introduced on Capitol Hill in its current form, he fears such a measure will be promoted by the administration in the event of another major terrorist attack on U.S. soil.

"I think if these provisions are debated in a calm, reflective atmosphere most of them will not be enacted into law," he said. "But I am afraid that if we are in the immediate aftermath of an attack, Congress will not give these provisions the scrutiny they deserve, and they might rush into it like they did with the Patriot Act."


Higgs echoed Lynch's concern.

"I can only hope people will wake up to what is happening," he said. "It seems to me that when we enacted the USA Patriot Act, the United States came closer to being a police state. If Patriot II is enacted we have kissed the Constitution goodbye."

Latest Headlines