Son of the Patriot Act

By Charles Lewis and Adam Mayle, The Public i. Posted February 7, 2003.

The Bush Administration is preparing a bold, comprehensive sequel to the USA Patriot Act passed in the wake of September 11, 2001, which will give the government broad, sweeping new powers to increase domestic intelligence-gathering, surveillance and law enforcement prerogatives, and simultaneously decrease judicial review and public access to information.

The Center for Public Integrity has obtained a draft, dated January 9, 2003, of this previously undisclosed legislation and is making it available in full text (pdf).

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.

"We haven't heard anything from the Justice Department on updating the Patriot Act," House Judiciary Committee spokesman Jeff Lungren told the Center. "They haven't shared their thoughts on that. Obviously, we'd be interested, but we haven't heard anything at this point."

Senior members of the Senate Judiciary Committee minority staff have inquired about Patriot II for months and have been told as recently as this week that there is no such legislation being planned.

Mark Corallo, deputy director of Justice's Office of Public Affairs, told the Center his office was unaware of the draft. "I have heard people talking about revising the Patriot Act, we are looking to work on things the way we would do with any law," he said. "We may work to make modifications to protect Americans," he added. When told that the Center had a copy of the draft legislation, he said, "This is all news to me. I have never heard of this."

After the Center posted this story, Barbara Comstock, director of public affairs for the Justice Dept., released a statement saying that, "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."

An Office of Legislative Affairs "control sheet" that was obtained by the PBS program "Now With Bill Moyers" seems to indicate that a copy of the bill was sent to Speaker of the House Dennis Hastert and Vice President Richard Cheney on Jan. 10, 2003. "Attached for your review and comment is a draft legislative proposal entitled the 'Domestic Security Enhancement Act of 2003,'" the memo, sent from "OLP" or Office of Legal Policy, says.

Comstock later told the Center that the draft "is an early discussion draft and it has not been sent to either the Vice President or the Speaker of the House."

Dr. David Cole, Georgetown University Law professor and author of "Terrorism and the Constitution," reviewed the draft legislation at the request of the Center, and said that the legislation "raises a lot of serious concerns. It's troubling that they have gotten this far along and they've been telling people there is nothing in the works." This proposed law, he added, "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."

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.

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