Big Brother outgrows his shorts

On February 7, 2003 the Center for Public Integrity released a document that had come into its possession. That document is a draft of legislation yet to be introduced to the Congress called the Domestic Security Enhancement Act of 2003. Last night (2/7/03), Bill Moyer on his weekly program "NOW" helped break this story to the public. This document, which some are calling PATRIOT 2, goes even further in eliminating civil liberties and expanding "police power" than even the USA PATRIOT Act of 2001 did or the Homeland Security Act passed in 2002. This is legislation that (hopefully was) on the brink of being introduced as legislation. It is a "confidential" Department of Justice document (not Top Secret). It was written by people within the Justice Department and was sent to VP Dick Cheney, and Congressman Dennis Hastert, Speaker of the House.

Apparently no one else in Congress was given privy to this draft legislation - not even security committees.

I will discuss some of the aspects of this bill below, but it is important to realize that it was/is likely to be snuck into Congress during a time of confusion and high emotion (as was the PATRIOT and Homeland Security, and Use of Force Against Iraq). This timing would/will most likely be either at or near the declaration of war with Iraq, or following another "terrorist" attack. Therefore, the wider the knowledge of the legislation, and the more people who contact their legislators, the less likely this bill (or a similar one) would pass.

You may access a copy of the draft bill at any of these sites (others will most likely be available soon):
Domestic Security Enforcement Act of 2003
Justice Department drafts sweeping expansion of anti-terrorism act

This document is in Adobe format, so you need the Adobe Reader to access. If you want to print the document you must do so as an "image" file as it was apparently scanned.

In looking at the Domestic Security Enhancement Act of 2003, it is important to realize what FISA is and what has transpired between the FISA court and the Justice Department (John Ashcroft). FISA is the Foreign Intelligence Surveillance Act which lays out the rules and boundaries for the surveillance and prosecution of foreigners in the US accused of things such as spying. It offers none of the protections of the Constitution or Bill of Rights, and severely restricts due process rights that apply to US citizens. The FISA Court of Review is a secret tribunal comprised of Supreme Court Justices, who meetings are behind closed doors and whose decisions in FISA matters are unappealble (to the best of my knowledge). On November 19,2002, the FISA Court of Review gave the Department of Justice the right to extend FISA to US citizens - thereby eroding any Constitutional or otehr protections of US citizens under the law.

I am going to share some of the aspects of the proposed bill. The Center for Public Integrity also has a write up on this, and I imagine that others will follow in short order - so keep your eyes open!

Just a sampling (parts from the proposed legislation are in italics and the discussion in plain text is mine:

Section 101: Individual Terrorists as Foreign Powers ... the definiton of "foreign power" includes groups that engage in international terrorism, but does not reach unaffiliated individuals who do so. As a result, "lone wolf" terrorists or "sleeper cells" may not be authorized under FISA. ... This provision would expand FISA's definition of "foreign power" to include all persons, regardless of whether they are affiliated with an international terrorist group, who engage in international terrorism.

In other words, EVERYONE is a "foreign power" under this definition. This also means that all of existing FISA provisions and all the remained of this proposed legislation applies to everyone and everyone the DOJ labels as an "international terrorist."

Section 102: Clandestine Intelligence Activities by Agent of a Foreign Power. FISA currently defines "agent ofd a foreign power" to include a person who knowingly engages in clandestine intelligence gathering activites on behalf of a foreign power -- but only if those activities "invole or may involve a violation of" federal criminal law. ... This provision would expand the definitions contained in 50 U.S.C. 1801(b)(2)(A)&(B). Any person who engages in clandestine intelligence gathering activities for a foreign power would qualify as an "agent of a foreign power," regardless of whether those activities are federal crimes.

Since everyone is now a "foreign power" then anyone engaging in "intelligence gathering" (whether legal or not) for someone else is also an "agent of a foreign power." The draft legislation also greatly expands the scope of power of the DOJ and its agents and the President as well as making them immune from prosecution for violation of laws or infringement of people's rights. as can be seen below.

Section 104: Strengthening FISA'a Presidential Authorization Exception. ... enhance the presidential authorization exception by eliminating the requirement that electronic sureveillance cannot be directed act the spoken communications of foreign powers.

Section 105: Law Enforcement Use of FISA Information.

... Specifically it would eliminate the requirement that the Attorney General personally approve the use of such information in the criminal context, and would substitute a requirement that such use be approved by the Attorney General, the Deputy Attorney General, the Associate Atternal General, or an Assistant Attorney General designated by the Attorney General.

In other words, a whole lot of folks who get a memo that says they may use information gathered "illegally."

Section 106: Defense of Reliance on Authorization. ... the "good faith reliance" defense is available, not just when agensts are acting pursuant to a FISA Court order, but also when they are acting pursuant to a lawful authorization from the President or the Attorney General

In other words, if they have orders (or implied orders), they a immune from prosecution.

Section 206: Grand Jury Information in Terrorism Cases. ... would permit witnesses and recipients of grand jury supoenas to consult with counsel regarding the supoena and any testimony, but impose the same secrecy obligations on counsel.

All testimony or materials are under a security secrecy seal. And everyone has a "gag" order.

Section 306: Conditions of Release. This provision would amend several portions of the United States Code to clarify that terrorists or suspected terrorists who are under any form of federal supervision or conditional release, including parole, are subjext to theis Subtitle's provisions. These individuas would be in the physical custody of the United States but for an act of government discretion. This section would require such individuals to cooperate in the collection of a DNA sample as a condition of supervision or conditional release.

Section 405: Presumption for Pretrial Detention in Cases Involving Terrorism.

Allows for pretrial detention of all those suspected of terrorism (or other violations previous stated) without bail in federal facilities.

Section 410: No Staturte of Limitations for Terrorism Crimes. Anytime they find out in the future that you may have engaged in a "terrorist" violation or been an "agent of a foreign power" they can detain and prosecute you.

Section 501: Expatriation of Terrorists.
Specifies that US citizens may lose their citizenship for participation in terrorism or support of "terrorist organizations." US citizens can be removed to some region inside or outside the US.

Section 504: Expedited Removal of Criminal Aliens.
Foreign Nationals and visa holders can be deported - but not necessarily to their nation of origion.

This is very frightening legislation. Please help spread the word.


Posted by rowan at February 8, 2003 2:21 PM | [eMail this article!] |