Worse Than Ashcroft
By Nat Hentoff
The Village Voice

November 29th, 2004

Bush’s new attorney general helped write the Patriot Act and supported torture.

His sharp intellect and sound judgment have helped shape our policies on the war on terror, policies designed to protect the security of all Americans while protecting the rights of all Americans.
- George W. Bush, announcing the appointment of Alberto Gonzales as attorney general, The New York Times, November 11

The American people expect and deserve a Department of Justice guided by the rule of law.
- Alberto Gonzales, accepting the nomination, The New York Sun, November 11

When you encounter a person who is willing to twist the law…even though for perhaps good reasons, you have to say you’re really undermining the law itself.
- Jim Cullen, retired chief judge of the U.S. Army Court of Criminal Appeals, referring to Alberto Gonzales, National Public Radio, November 11
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I do not approve of filibustering presidential nominees, no matter who is president, because the Constitution, along with the Federalist Papers, makes clear that the whole Senate is to give advice and consent to these presidential nominees. But if I were a senator, I would be sorely tempted to filibuster Alberto Gonzales. The Democrats, still shell-shocked by their second loss to Bush, and by the size of the Hispanic vote for the president, are not likely to filibuster Gonzales. But since Gonzales will be more dangerous to our liberties than Ashcroft, I will begin here to show how low the standards have become for the chief law enforcement officer of the nation. Maybe at least the American Bar Association and the Association of the Bar of the City of New York will stand up against Gonzales.

I must credit National Public Radio’s Nina Totenberg, an experienced analyst of constitutional law and a reporter who never stops digging to get to the core of Gonzales’s ominous record as White House counsel. On November 11, she pointed out: “Gonzales was responsible for developing the administration’s policies on the treatment of prisoners; for developing a new definition of torture to allow more aggressive questioning of prisoners. He developed the policy that allowed the indefinite detention of American citizens deemed to be enemy combatants without [being charged] or [having] access to counsel. . . . The Supreme Court, though, rejected that [Gonzales] theory . . .

“Top legal brass in the army, air force, and navy say that Gonzales deliberately left them out of developing policy on the treatment of prisoners because he knew they would oppose.”

On November 10, Totenberg quoted retired general Jim Cullen of the U.S. Army Court of Criminal Appeals, who says Gonzales directly contradicted established military and international law. He added that Gonzales realized that “the Judge Advocate Generals Corps would never sanction departures from the Geneva Conventions or engaging in practices that the common man would regard as torture.”

Says the Senate Judiciary Committee’s clueless attack dog in these matters, Charles Schumer, about Gonzales: “I can tell you already he’s a better candidate than John Ashcroft.”

There’s a lot more about Alberto Gonzales that will prepare you for what to expect for the next four years from the Justice Department. In a January 2002 memorandum to George W. Bush, he emphasized that this new war on terror “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”

Gonzales also told George W. Bush that in denying these “detainees”-many of them now held at Guantánamo for nearly three years without charges-prisoner of war status under the Geneva Conventions, the president didn’t have to worry about being held accountable by the courts. As commander in chief, his actions were unreviewable.

Said the Supreme Court, in June, concerning the accuracy of the advice from the next attorney general of the United States about deep-sixing U.S. citizens, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of [American] citizens.” And the Court also ruled he was wrong about the noncitizen prisoners at Guantánamo.

Alberto Gonzales, moreover, will not in the least disturb John Aschroft’s beloved USA Patriot Act, because Gonzales helped write it, and he wholly agrees with his patron, the president, that nothing in it should be changed despite the act’s “sunset clause” that allows Congress to review sections of the act by December 2005.

As the February 11 Financial Times reports, Gonzales, as counsel to the president, worked “to bar top White House officials from testifying before the commission that investigated the September 11 attacks.” Nor has Gonzales shown any interest in an investigation of the accountability of leading administration officials, including their compliant lawyers, for the egregious abuses of the Abu Ghraib prisoners, to which Gonzales contributed.

Bluntly, an editorial in Financial Times (not a notably radical newspaper) says of Gonzales: “As well as being a longtime personal friend of the president, he is publicly associated with discussion within the administration of how to sidestep national as well as international constraints on the use of torture in interrogation in the prison camp at Guantánamo.”

If there ever is an honest investigation of who is ultimately responsible for what happened there and at Abu Ghraib, Mr. Gonzales might well be in the dock, along with Donald Rumsfeld and a number of the defense secretary’s closest aides.

Next week: Alberto Gonzales’s role, and record, as legal counsel to the then chief executioner of the United States, Texas Governor W. Bush, in deciding on the petitions for clemency from 57 of the 150 men and two women executed during Bush’s six years as governor. Gonzales was central to amassing that record-unrivaled by any other governor.

Those who know Gonzales, however, keep saying he’s a nice guy.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

FAS Project on Government Secrecy
Steven Aftergood
Secrecy News
Volume 2004, Issue No. 100

November 14, 2004

THE ARRIVAL OF SECRET LAW

Last month, Helen Chenoweth-Hage attempted to board a United Airlines flight from Boise to Reno when she was pulled aside by airline personnel for additional screening, including a pat-down search for weapons or unauthorized materials.
Chenoweth-Hage, an ultra-conservative former Congresswoman (R-ID), requested a copy of the regulation that authorizes such pat-downs.

“She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told that she couldn’t see it,” local TSA security director Julian Gonzales told the Idaho Statesman (10/10/04).

“She refused to go through additional screening [without seeing the regulation], and she was not allowed to fly,” he said. “It’s pretty simple.”

Chenoweth-Hage wasn’t seeking disclosure of the internal criteria used for screening passengers, only the legal authorization for passenger pat-downs. Why couldn’t they at least let her see that? asked Statesman commentator Dan Popkey.

“Because we don’t have to,” Mr. Gonzales replied crisply.

“That is called ’sensitive security information.’ She’s not allowed to see it, nor is anyone else,” he said.

Thus, in a qualitatively new development in U.S. governance, Americans can now be obligated to comply with legally-binding regulations that are unknown to them, and that indeed they are forbidden to know.

This is not some dismal Eastern European allegory. It is part of a continuing transformation of American government that is leaving it less open, less accountable and less susceptible to rational deliberation as a vehicle for change.

Harold C. Relyea once wrote an article entitled “The Coming of Secret Law” (Government Information Quarterly, vol. 5, no. 2, 1988) that electrified readers (or at least one reader) with its warning about increased executive branch reliance on secret presidential directives and related instruments.

Back in the 1980s when that article was written, secret law was still on the way. Now it is here.

A new report from the Congressional Research Service describes with welcome clarity how, by altering a few words in the Homeland Security Act, Congress “significantly broadened” the government’s authority to generate “sensitive security information,” including an entire system of “security directives” that are beyond public scrutiny, like the one former Rep. Chenoweth-Hage sought to examine.

The CRS report provides one analyst’s perspective on how the secret regulations comport or fail to comport with constitutional rights, such as the right to travel and the right to due process. CRS does not make its reports directly available to the public, but a copy was obtained by Secrecy News.

See “Interstate Travel: Constitutional Challenges to the Identification Requirement and Other Transportation Security Regulations,” Congressional Research Service, November 4, 2004:

http://www.fas.org/sgp/crs/RL32664.pdf

Much of the CRS discussion revolves around the case of software designer and philanthropist John Gilmore, who was prevented from boarding an airline flight when he refused to present a photo ID. (A related case involving no-fly lists has been brought by the ACLU.)

“I will not show government-issued identity papers to travel in my own country,” Mr. Gilmore said.

Mr. Gilmore’s insistence on his right to preserve anonymity while traveling on commercial aircraft is naturally debatable — but the government will not debate it. Instead, citing the statute on “sensitive security information,” the Bush Administration says the case cannot be argued in open court.

Further information on Gilmore v. Ashcroft, which is pending on appeal, may be found here:

http://papersplease.org/gilmore/

TSA THREATENS TO ARREST LEAKERS

Efforts by the Transportation Security Administration to investigate air marshals for talking to the press or the public “were appropriate under the circumstances,” the Department of Homeland Security Inspector General said last week, and did not constitute a “witch hunt.”

However, “air marshals from two locations said that they were threatened with arrest and prosecution if they were found to have released sensitive security information (SSI), even though release of SSI is not a prosecutable offense,” the Inspector General said.

In a related overstatement, Federal Air Marshal Service policy says that “employees who release classified information or records in any form without authority from the Classified Documents Custodian are in violation of United States Code and are subject to arrest and prosecution,” the DHS Inspector General (IG) noted.

But “We question the legal accuracy of this policy statement, which seems to criminalize all releases of classified information,” the IG wrote.

The unauthorized disclosure of classified information is a criminal offense only in certain narrowly defined circumstances.

See “Review of Alleged Actions by TSA to Discipline Federal Air Marshals for Talking to the Press, Congress, or the Public,” DHS Inspector General Audit Report, November 2004:

http://www.fas.org/sgp/othergov/dhs-ig-ssi.pdf

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(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Faulty ‘No-Fly’ System Detailed
By Sara Kehaulani Goo
The Washington Post

October 9th, 2004

The federal government’s “no-fly” list had 16 names on it on Sept. 11, 2001. Today, it has more than 20,000.

The list, which identifies suspected terrorists seeking to board commercial airplanes, expanded rapidly even though the government knew that travelers were being mistakenly flagged, according to federal records. The records detail how government officials expressed little interest in tracking or resolving cases in which passenger names were confused with the growing number of names on the list.
More than 2,000 people have complained to the Transportation Security Administration. Airlines, at one point, were calling the agency at least 30 times a day to say that they had stopped a passenger whose name was similar to one on the list but after further investigation was determined not to be a terror suspect, according to a TSA memo.

More than 300 pages of documents related to the no-fly and related lists were released late Thursday night by the TSA and the FBI in response to a federal court order. The American Civil Liberties Union had filed suit on behalf of Jan Adams and Rebecca Gordon, two peace activists who wanted to know why their names had turned up on a no-fly list.

The documents reveal early symptoms of what are now known to be flaws with the watch lists. Travelers who were flagged by the lists said they now foil the system by altering how their names are spelled on their tickets - adding their middle initials, full middle names or titles, for example.

Government officials do not announce when they stop passengers actually on the lists. The only publicly known case involved Yusuf Islam, once known as the pop singer Cat Stevens, who was prevented last month from entering the country.

The information revealed by the documents is “not very comforting,” said Thomas R. Burke, a San Francisco attorney representing the peace activists and the ACLU.

The TSA acknowledges that the system for checking passenger names for suspected terrorists needs fixing, and it plans to overhaul it in a new program called Secure Flight. The Justice Department declined to comment.

The false matches “underscore the need we have to get more information on passengers to adjudicate those that are not a risk,” said Department of Homeland Security spokesman Brian Roehrkasse.

Every time a passenger books a ticket, the airline checks the traveler’s name against two enormous government databases, or watch lists, of people the government believes pose a threat. The FAA created two lists in 2001: a no-fly list and a so-called selectee list, both of which airlines compare against reservation records. When the TSA was formed in 2002, it took over maintenance of the lists from the FAA. The no-fly list grew from 16 names supplied by the FBI in 2001 to 1,000 names by the end of 2002, according to the newly released TSA documents. There are now more than 20,000 names on the no-fly list, some which are aliases, according to a homeland security source who is not allowed to release such numbers. There are several thousand names on the selectee list, according to the source.

Internal TSA memos direct airlines to refuse boarding to a passenger on the no-fly list and to alert the local FBI. Travelers on the selectee list are to be directed to a law enforcement officer and put through additional security procedures in order to board the plane, the documents said.

Airlines declined to say exactly what kind of technology they use to match names. But the documents make clear that in the months after Sept. 11, carriers were having difficulty with the task. The Air Transport Association, the airline trade group, met with the TSA’s top policy director in December 2002 to address the “false positives problem,” according to a TSA memo.

“This has been such a headache for me,” wrote one Alaska Airlines executive, whose name was redacted, in an e-mail to the TSA a week before the meeting. “Any solutions . . . would be greatly appreciated.”

TSA officials wrote letters and e-mails of apology to passengers who complained of being mistakenly flagged by the lists. But in an internal memo, officials said there was little the agency could do.

“While a few carriers keep track of ‘false positives’ the majority do not,” wrote Chad Wolf, now TSA’s number-two policy official, in a December 2002 e-mail to agency legislative affairs official Cori Sieger. “Consequently, TSA does not have the ability to record this data nor is there a pressing need to do so.”

Passengers are falsely flagged by the lists in such large numbers because of the kind of technology airlines use to compare the reservation lists to the watch lists, according to experts in name-matching technology. Each airline conducts the matches differently. Many major carriers use a system that strips the vowels from each passenger’s name and assigns it a code based on the name’s phonetic sound, according to the Air Transport Association.

The name-matching technology is “too simplistic for a very complex problem,” said Jack Hermansen, co-founder of Language Analysis Systems Inc. in Herndon, a company that has a competing name-matching technology that factors in a name’s cultural origin. “It’s these accidental matches that cause the big problem.”

The phonetic-code concept is traced back to a program called Soundex patented in 1918, which was used by Census Bureau officials to help sort out names that sounded similar but might be spelled differently. The name “Kennedy,” for example, would be assigned the Soundex code K530, which is the same code assigned to Kemmet, Kenndey, Kent, Kimmet, Kimmett, Kindt and Knott, according to genealogy Web sites that use the technology. Today’s systems are more sophisticated than Soundex, but they grew from the same origins, experts said.

“The reason this technology is used is you’re really trying to protect against typing errors,” said Steven Pollock, executive vice president at TuVox Inc., a company that sells speech-recognition software. “When someone types in a name, the problem and the challenge is people will spell names incorrectly. . . . Names are definitely the toughest things to get [right], no doubt about it.”

But the phonetic coding systems tend to ensnare people who have similar-sounding names, even though a human being could tell the difference. Earlier this month, for example, Rep. Donald E. Young (R-Alaska), said he was flagged on the “watch list” when the airline computer system mistook him for a man on the list named Donald Lee Young.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

GOP Adds New Police Powers To Intel Bill
By Mary Curtius
The Los Angeles Times

September 24th, 2004

Washington - House Republicans introduced a bill today grafting broad new powers for law enforcement onto what they said was the most comprehensive response yet to the Sept. 11 Commission’s call for reform of the nation’s intelligence community.

Both Democrats and some Republicans said that the addition of anti-terrorism measures to the House version of an intelligence reform bill dimmed prospects that a bill would be signed into law before the Nov. 2 elections.
Critics accused Republicans of using the back door of intelligence reform to push through elements of a Justice Department memo that leaked last year, dubbed “Patriot Act II,” that would have expanded anti-terrorism measures enacted in the wake of the Sept. 11 terrorist attacks on the Pentagon and the World Trade Center.

The Senate Governmental Affairs Committee unanimously sent to the Senate floor a narrower bill on Wednesday, creating a national intelligence director and a national center for counter-terrorism.

The bill, which House Speaker Dennis Hastert (R-Ill.) said would go through a half-dozen committees on its way to the House floor the following week, would create a national intelligence director and a national center for counter-terrorism, as recommended by the Sept. 11 Commission.

But the bill would give both the director and the center less power than the version the Senate Governmental Affairs Committee adopted unanimously on Wednesday, and less than the Sept. 11 commission recommended.

The commission saw the director as the president’s chief advisor on terrorism and a powerful supervisor of all the nation’s 15 intelligence agencies, controlling budgets and weighing in on key personnel decisions.

It is the sections of the 300-plus-page House bill that deal with aspects of government outside intelligence reform, however, that quickly proved the most controversial.

The bill would make it easier to deport aliens who help or join terrorist groups; give the government more power to track “lone wolf” terrorists not connected to a particular terrorist organization, and set minimal federal standards for state-issued drivers’ licenses and identity cards.

“Our bill is the most comprehensive effort yet introduced that deals with the problems uncovered by the 9/11 Commission,” Hastert told reporters.

Democrats and some Republicans said the bill needlessly politicized what had been a bipartisan effort in the Senate to produce fundamental reform of the nation’s intelligence apparatus.

“It has complicated the process,” said Rep. Jane Harman (D-Venice), the ranking Democrat on the House Intelligence Committee. Harman objected to what she said was the bill’s effort to curb the authority of the national intelligence director and the counter-terrorism center. Beyond its proposals for intelligence reform, she added, the bill “has a lot of problems.”

Rep. Ray LaHood (R-Ill.), who serves on the House Intelligence Committee, said he was unhappy with a draft he saw of the House bill Thursday.

“The bill that I saw…I don’t intend to support,” LaHood said. “What will end up happening is we’ll pass something in the House that will be totally different than the Senate, then have the huge train wreck that we always have here in trying to reconcile the two,” LaHood said.

Hastert insisted that the legislation would “reform the government, to make it more effective in battling terrorists.” And he said the House leadership intended to have a bill ready for Bush to sign before the elections.

Lawmakers said today that the White House would be a key player in the political maneuvering that will kick into high gear next week, when the Senate plans to take up its Governmental Affairs Committee’s reform bill and the House committees will complete work on the House version.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

PATRIOT ACT: Law’s Use Causing Concerns
By J.M. Kalil and Steve Tetreault
Las Vegas Review-Journal

November 5th, 2004

Use of statute in corruption case unprecedented, attorneys contend

The investigation of strip club owner Michael Galardi and numerous politicians appears to be the first time federal authorities have used the Patriot Act in a public corruption probe.

Government officials said Tuesday they knew of no other instances in which federal agents investigating allegations such as racketeering and bribery of politicians have employed the act.

“I don’t know that it’s been used in a public corruption case before this,” said Mark Corallo, a spokesman for the Justice Department.
An attorney for one of the defendants in the Galardi case said he researched the matter for hours Tuesday and came to the same conclusion.

“I have discussed this with lawyers all over the country, and if the government has done this before, then this is definitely the first time it has come to light,” said Las Vegas attorney Dominic Gentile, who represents former Clark County Commissioner Lance Malone, Galardi’s lobbyist.

Two of Nevada’s lawmakers blasted the FBI for employing the act in the Galardi probe, saying the agency overstepped its bounds.

Sen. Harry Reid, D-Nev., said Congress intended the Patriot Act to help federal authorities root out threats from terrorists and spies after the Sept. 11, 2001, attacks.

“The law was intended for activities related to terrorism and not to naked women,” said Reid, who as minority whip is the second most powerful Democrat in the Senate.

“Let me say, with Galardi and his whole gang, I don’t condone, appreciate or support all their nakedness. But having said that, I haven’t heard anyone say at any time he was involved with terrorism.”

Rep. Shelley Berkley, D-Nev., said she was preparing an inquiry to the FBI about its guidelines for using the Patriot Act in cases that don’t involve terrorism. The law makes it easy for citizens’ rights to be abused, she said.

“It was never my intention that the Patriot Act be used for garden-variety crimes and investigations,” Berkley said.

But Corallo insisted lawmakers were fully aware the Patriot Act had far-reaching implications beyond fighting terrorism when the legislation was adopted in October 2001.

“I think probably a lot of members (of Congress) were only interested in the anti-terrorism measures,” Corallo said. “But when the Judiciary Committee sat down, both Republicans and Democrats, they obviously discussed the applications, that certain provisions could be used in regular criminal investigations.”

Federal authorities confirmed Monday the FBI used the Patriot Act to get financial information in its probe of Galardi and his dealings with current and former politicians in Southern Nevada.

“It was used appropriately by the FBI and was clearly within the legal parameters of the statute,” said Special Agent Jim Stern of the Las Vegas field office of the FBI.

One source said two Las Vegas stockbrokers were faxed subpoenas Oct. 28 asking for records for many of those identified as either a target or subject of the investigation.

That list includes Galardi, owner of Jaguars and Cheetah’s topless clubs; Malone; former Commissioner Erin Kenny; County Commission Chairwoman Mary Kincaid-Chauncey; former County Commission Chairman Dario Herrera; and former Las Vegas City Councilman Michael McDonald, defeated for re-election in June.

A second source confirmed that stockbrokers had been faxed subpoenas asking for information on Galardi, Malone, Kenny, Kincaid-Chauncey, Herrera, McDonald and at least one of the former politicians’ spouses.

That source said the subpoena appeared to be a search for hidden proceeds that could be used as evidence of bribery. A source also indicated that records on Las Vegas City Councilman Michael Mack were sought.

Sources said the FBI sought the records under Section 314 of the act. That section allows federal investigators to obtain information from any financial institution regarding the accounts of people “engaged in or reasonably suspected, based on credible evidence, of engaging in terrorist acts or money laundering activities.”

Gentile, Malone’s attorney, said he plans to mount a legal challenge once he confirms the Patriot Act was used to investigate his client. “My research today indicates that this is the first time the government has used Section 314 in a purely white-collar criminal investigation.”

Attorney General John Ashcroft has touted the law as an effective homeland security tool, but coalitions of civil libertarians and conservatives concerned about a too-powerful federal government have led criticism against it.

Corallo said federal law enforcement officials have no qualms about using the act to pursue an array of criminal investigations that have nothing to do with terrorism, such as child pornography, drug trafficking and money laundering.

“I think most of the American people think the Patriot Act is a good thing and it’s not affecting their civil liberties at all, and that the government should use any constitutional and legal tools it can, whether it’s going after garden-variety criminals or terrorists.”

But Gary Peck, executive director of the American Civil Liberties Union of Nevada, expressed outrage at Corallo’s suggestion that lawmakers were largely aware the Patriot Act’s provisions would equip the FBI with new investigative tools beyond the scope of terrorism investigations.

“Those comments are disingenuous at best and do little to inspire confidence that the act won’t be systematically abused,” Peck said.

Rep. Jim Gibbons, R-Nev., said it may be too soon to weigh its application to a Nevada investigation that still is largely under wraps. Prosecutors have announced no indictments.

Citing the ongoing investigation, Sen. John Ensign and Rep. Jon Porter, both R-Nev., declined to be interviewed.

Porter was not in Congress when lawmakers approved the Patriot Act, but the other four Nevada lawmakers voted as part of large majorities in favor of the measure.

The Patriot Act will expire in 2005 unless Congress renews it. “More activity like this is going to cause us to take a close look at what was passed,” Reid said of the law being invoked in the Galardi probe.

Review-Journal writer Carri Geer Thevenot contributed to this report. Stephens Washington Bureau chief Steve Tetreault reported from Washington, D.C.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

How the USA PATRIOT Act Redefines “Domestic Terrorism”
Published by the ACLU
December 6, 2002

Section 802 of the USA PATRIOT Act (Pub. L. No. 107-52) expanded the definition of terrorism to cover “domestic,” as opposed to international, terrorism. A person engages in domestic terrorism if they do an act “dangerous to human life” that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping. Additionally, the acts have to occur primarily within the territorial jurisdiction of the United States and if they do not, may be regarded as international terrorism.
Section 802 does not create a new crime of domestic terrorism. However, it does expand the type of conduct that the government can investigate when it is investigating “terrorism.” The USA PATRIOT Act expanded governmental powers to investigate terrorism, and some of these powers are applicable to domestic terrorism.

The definition of domestic terrorism is broad enough to encompass the activities of several prominent activist campaigns and organizations. Greenpeace, Operation Rescue, Vieques Island and WTO protesters and the Environmental Liberation Front have all recently engaged in activities that could subject them to being investigated as engaging in domestic terrorism.

One recent example is the Vieques Island protests, when many people, including several prominent Americans, participated in civil disobedience on a military installation where the United States government has been engaging in regular military exercises, which these protesters oppose. The protesters illegally entered the military base and tried to obstruct the bombing exercises. This conduct would fall within the definition of domestic terrorism because the protesters broke federal law by unlawfully entering the airbase and their acts were for the purpose of influencing a government policy by intimidation or coercion. The act of trying to disrupt bombing exercises arguably created a danger to human life ˆ their own and those of military personnel. Using this hypothetical as a starting point, we will go through the USA PATRIOT Act and explore the new governmental powers that could be brought to bear on Vieques Island protesters whose conduct falls within the overbroad definition of domestic terrorism.

Seizure of assets ˆ Sec. 806: Section 806 of the Act could result in the civil seizure of their assets without a prior hearing, and without them ever being convicted of a crime. It is by far the most significant change of which political organizations need to be aware. Section 806 amended the civil asset forfeiture statute to authorize the government to seize and forfeit: all assets, foreign or domestic (i) of any individual, entity, or organization engaged in planning or perpetrating any act of domestic or international terrorism against the United States, or their property, and all assets, foreign or domestic, affording any person a source of influence over any such entity or organization or (ii) acquired or maintained by any person with the intent and for the purpose of supporting, planning, conducting, or concealing an act of domestic or international terrorism against the United States, citizens or residents of the United States or their property or (iii) derived from, involved in, or used or intended to be used to commit any act of domestic or international terrorism against the United States, citizens or residents of the United States, or their property.

This language is broad enough to authorize the government to seize any assets of any individuals involved in the Vieques Island protests or of any organization supporting the protests of which the person is a member, or from any individuals who were supporting the protesters in any way. Possible supporters of the protesters could include student organizations that sponsored participation in the demonstration, the Rainbow/Push Coalition, the Rev. Sharpton’s National Action Network, and religious or community organizations that provided housing or food to the protesters.

The civil asset forfeiture power of the United States government is awesome. The government can seize and/or freeze the assets on the mere assertion that there is probable cause to believe that the assets were involved in domestic terrorism. The assets are seized before a person is given a hearing, and often without notice. In order to permanently forfeit the assets, the government must go before a court, but at a civil hearing, and the government is only required to prove that the assets were involved in terrorism by a preponderance of the evidence. Because it is a civil proceeding, a person is not entitled to be represented by an attorney at public expense if they cannot afford to pay an attorney. The time between seizure and forfeiture can sometimes be months; meanwhile, organizations or individuals whose assets are seized are forced to make do without the assets. Only the most financially flush non-profit organizations would be able to successfully defend themselves against government forfeiture. In short, without the full due process afforded in criminal cases, the U.S. government can bankrupt political organizations it asserts are involved in domestic terrorism.

Disclosure of educational records ˆ Sec. 507: This provision of the USA PATRIOT Act requires a judge to issue an order permitting the government to obtain private educational records if the Attorney General or his designee certifies that the records are necessary for investigating domestic or international terrorism. No independent judicial finding is required to verify that the records are relevant. This means that the Attorney General may obtain the private educational records of a student involved in the Vieques protests by asserting that the records are relevant to a domestic terrorism investigation. These records may include information such as a student’s grades, private medical information (counseling, abortions), which organizations the student belonged to, or any other information that the educational institution collects about its students.

Disclosure of information from National Education Statistics Act ˆ Sec. 508: This provision of the USA PATRIOT Act requires a judge to issue an order for the government to obtain educational records that have been collected pursuant to the National Education Statistics Act. NESA includes a vast amount of identifiable student information from academic performance to health information, family income, and race. Until now, this information has been held to strict confidentiality requirements without exception. Again, all the government needs to certify is that the information is relevant to a terrorism investigation and the court has no choice but to issue the order.

Single-Jurisdiction Search Warrants (Sec. 219): This section of the USA PATRIOT Act amends Rule 41(a) of the Federal Rules of Criminal Procedure to authorize the government to go before a singe Federal magistrate judge in any judicial district in which activities relating to the terrorism may have occurred, to obtain a warrant to search property or a person within or outside the district. This means that the government could go to a single judge to get a warrant to search the property or person of the Vieques activists in New York, Chicago, California, or wherever else the protesters were from. If the government chose to go before a magistrate in New York, a person in California, who wished to seek to have the warrant quashed because he or she believed it was invalid, would have to find a way to appear before the New York court that issued the warrant. This would be a daunting task for most.

Post-PATRIOT Act Laws

Since passage of the PATRIOT Act, two other new laws have passed that implicate domestic terrorism.

Taxpayer Information ˆ 26 U.S.C.A. Sec. 6103(i)(3)(C) requires the Secretary of the Internal Revenue Service to provide taxpayer information to the appropriate Federal law enforcement agency responsible for investigating or responding to the terrorist incident. If abused, this provision could be used by law enforcement to gain access to confidential taxpayer information of political protesters.

Regulation of biological agents and toxins ˆ 42 U.S.C.A. Sec. 262a and 7 U.S.C.A. Sec. 8401 regulate biological agents and toxins. If a person is involved with an organization that engages in domestic or international terrorism, he or she is not permitted to gain access to these regulated agents. Under the law, the Attorney General identifies individuals involved in „terrorism‰ to the Department of Agriculture. Once the person is listed, he or she cannot get access to any of the regulated agents or toxins. This provision will probably not impact most people, however, it might impact someone such as a scientist who might regularly use biological agents or toxins in their work.

Conclusion ˆ The ACLU does not oppose criminal prosecution of people who violate the law, even if they are doing it for political purposes. However, we do oppose the broad definition of terrorism and the ensuing authority that flows from that definition. One way to ensure that the conduct that falls within the definition of domestic terrorism is in fact terrorism is to limit the scope of the conduct that triggers the definition. Thus, domestic terrorism could include acts which “cause serious physical injury or death” rather than all acts that are “dangerous to human life.” This more narrow definition will exclude the conduct of organizations and individuals that engage in minor acts of property damage or violence.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Congress Has Second Thoughts on Patriot Act
By Katrin Dauenhauer
Inter Press Service/Common Dreams

July 24, 2003

WASHINGTON — Taking a clear stand against anti-privacy provisions in the Patriot Act, the U.S. House of Representatives in an overwhelmingly bipartisan effort last night agreed to an amendment that would bar federal law enforcement from carrying out secret “sneak and peek” searches without notifying the target of the warrant.
The Otter Amendment, added to the Commerce, Justice and State Departments funding bill and named after Rep. C.L. “Butch” Otter, an Idaho Republican, passed by an extraordinary margin of 309 to 118, with 113 Republicans voting in favor.

“Not only does this provision allow the seizure of personal and business records without notification, but it also opens the door to nationwide search warrants and allowing the CIA (Central Intelligence Agency) and NSA (National Security Agency) to operate domestically,” Otter said.

The Patriot Act, which significantly expands the government’s domestic spying powers, was passed within weeks of the Sept. 11, 2001 terrorist attacks. The House amendment represents the first major change to the act since it was signed into law by Pres. George W. Bush.

Civil liberties activists immediately hailed the decision as a huge win. “Congress took a courageous stand last night in its response to widespread public concern over civil liberties–hopefully this is the first trickle in a flood of Patriot fixes,” said Laura W. Murphy, director of the American Civil Liberties Union’s Washington Legislative Office.

“Congress is beginning to respond to what regular Americans have been saying at backyard barbecues and across their kitchen tables for months now: we can–and must–be both safe and free,” she said.

The amendment would effectively prohibit any implementation of the controversial section 213 of the Patriot Act, which enables federal agents to obtain so-called “sneak and peek” warrants with far less evidence than was required before the bill was passed..

Under these warrants–also referred to as “black bag” warrants–agents have the permission to search homes, confiscate certain types of property and monitor computers, without notifying the subject of the search. The amendment still has to get past the Senate and Pres. Bush before it becomes law.

Yesterday’s House vote was preceded by a unanimous vote in the Senate last week to deny funding for the domestic cyber-surveillance system known as the Terrorism Information Awareness (TIA) project– recently renamed from “Total Information Awareness”.

A provision blocking funding for the program was included in the Senate version of a military spending bill currently being considered in Congress. In contrast to the House version, which only restricted TIA’s use against U.S. citizens, the Senate version denies funding for “research and development on the Terrorism Awareness System.”

The program would use data-mining technology to scan vast amounts of personal “transactional” data, including looking for and monitoring suspicious patterns in telephone records, credit card transactions, broadcasts, internet use, medical files, relationships, travel details and legal information, among others.

Democratic Senators Ron Wyden, from Oregon, and Russ Feingold, from Wisconsin, had pledged last winter to block funding of TIA until Congress has a chance to thoroughly review the project’s implications.

A fellow senator, Jon Corzine of New Jersey, has complained that TIA takes an “Orwellian approach”–in fact, one of the program’s first logos (since discarded) featured an all-seeing eye casting its gaze out over the globe. The language agreed to in the Senate last week is even more forceful than that suggested by Wyden and Feingold, and stands in clear contrast to the Bush administration’s active support for the program and the Pentagon’s aggressive lobbying on behalf of TIA.

“Make no mistake, the Pentagon can’t erase history by changing a name–it’s the same program and contains the same pitfalls,” said Barry Steinhardt, director of the ACLU’s Liberty and Technology Program. “Luckily the Senate historically stood up to the administration and Pentagon and said ‘no’ to a surveillance society.”

“Terrorism Information Awareness, as it’s now called, seeks to catch bad guys by spying on law-abiding Americans, making it ineffective and inherently offensive to civil liberties,” Steinhardt added. “Those lawmakers who sought to shut it down deserve applause for supporting Americans’ right to privacy.”

Opposition to the program, as well as to several sections of the Patriot Act, is growing and has been unusually broad, including groups as diverse as the ACLU and the American Conservative Union.

Earlier this week, the ACLU kicked off a “Campaign to Defend Our Libraries,” with the aim of warning patrons about Section 215 of the Patriot Act. The section grants law enforcement the ability to obtain–without an ordinary criminal subpoena or search warrant and without probable cause–a court order giving them access to “business records” and “any tangible thing,” including records from libraries, booksellers, doctors, universities, Internet service providers and financial institutions.

Critics see the section as too broad and structured in a way that allows ordinary citizens to be caught up in the net of intelligence investigations. “The New Mexico Library Association is on record expressing its concerns about the Patriot Act,” said Eileen Longsworth, president of the association. “The NMLA encourages the library community to educate itself and library customers about the Patriot Act, and the potential dangers to individual privacy and confidentiality of library records resulting from the enforcement of this act.”

Bills are currently pending in the House and Senate that seek to restore privacy in libraries and bookstores.

Opposition to the Patriot Act is also coming from state legislatures. Yesterday, the city council of Charlottesville, Virginia blocked some implementation of the act, joining more than 140 communities, encompassing more than 16 million people in 27 states, that have passed resolutions against it.

Copyright 2003 IPS

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

The USA Patriot Act: We Deserve Better
By Robert A. Levy
Liberty Magazine

Senior Fellow in Constitutional Studies, Cato Institute
A version of this article orginally appeared in Liberty magazine.

If you think the Bill of Rights is just so much scrap paper, and the separation of powers doctrine has outlived its usefulness, then the USA PATRIOT Act, passed overwhelmingly on Oct. 25, is the right recipe to deal with terrorists. On the other hand, if you are concerned about Fifth Amendment protection of due process, and Fourth Amendment safeguards against unreasonable searches and seizures, then you should be deeply troubled by the looming sacrifice of civil liberties at the altar of national security.
To be sure, the Constitution is not a suicide pact. Government is legitimately charged with defending life, liberty, and property against both domestic and foreign predators. First among those obligations is to protect life. With America under attack, and lives at risk, civil liberties cannot remain inviolable. But that’s a far cry from asserting that they may be flouted to wage war against fanatics.

Proponents of the new bill surely understood that many of its provisions were incompatible with civil liberties. Yet rather than modify the offending provisions, the president and Congress decided to promote the bill as an expression of patriotism. Hence the acronym - USA PATRIOT - and its bloated title, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The sales pitch worked. Fearful of being labeled disloyal after the September atrocities, the House endorsed the bill 357-to-66, followed by a 98-to-1 rout in the Senate, with only Russ Feingold (D-Wis.) in opposition.

From its initial draft to its final adoption, USA PATRIOT zipped through in six weeks - gutting much of the Fourth Amendment in far less time than Congress typically expends on routine bills that raise no constitutional concerns. Congress’ so-called deliberative process was reduced to this: Closed-door negotiations; no conference committee; no committee reports; no final hearing at which opponents could testify; not even an opportunity for most of the legislators to read the 131 single-spaced pages about to become law. Indeed, for part of the time, both the House and Senate were closed because of the anthrax scare; congressional staffers weren’t able to access their working papers.

The negligible legislative record will make it difficult for courts to determine the intent of Congress. And because legislative intent matters to some judges - for example, Supreme Court Justices Stephen Breyer and David Souter - the USA PATRIOT statute might ultimately be invalidated as unconstitutionally vague. Ironically, Congress’ rush job, which facilitated passage of the bill, could be the cause of the bill’s downfall. The same law that was promoted as an act of patriotism might even provide a rationale for releasing the madmen who committed the horrific terrorist acts against the United States.

Yet the more acute objections to the new statute are substantive, not procedural. They fall into three main categories. First, any law with the potential to dramatically alter conventional notions of individual freedom should fastidiously guard against abuse. The doctrine of separation of powers, a centerpiece of our Constitution, has been a traditional buffer against such abuse. By requiring advance judicial authorization of certain executive actions, followed by judicial review to assure that those actions have been properly performed, our liberties are shielded from excessive concentrations of power in a single branch of government. As we shall see, the USA PATRIOT Act does not pass muster.

Second, if the new rules are at all justifiable, they are defended as a necessary instrument of anti-terrorism. If so, why do many of the provisions apply not only to suspected terrorist acts but also to everyday national security investigations and even ordinary criminal matters? In effect, our government has exploited the events of Sept. 11 to impose national police powers that skirt time-honored constraints on the state. The executive branch will not always wield its new powers in the service of ends that Americans find congenial. Better that the government be shackled by the chains of the Constitution.

Third, laws that compromise civil liberties must be revisited periodically to assure that temporary measures, undertaken in response to a national security emergency, do not endure longer than necessary. Such laws must contain sunset clauses; that is, the law should expire automatically within a short time of enactment - thus imposing on government the continuing obligation to justify its intrusions. In this instance, the Bush Administration rejected any sunset provision whatsoever. Congress demurred, and insisted on including such a provision; but it applied only to new wiretap and surveillance powers, not to the whole bill. Moreover, the sunset date was fixed at Dec. 31, 2005 - more than four years after passage of the legislation. Plainly, a shorter time frame - one year, or two years at most - would have been appropriate. If the emergency persisted, Congress and the president could reenact the law.

Skeptics might dismiss those objections as mere abstractions - civil libertarianism run amok - unless they are illuminated by concrete examples from the statute. Here, then, are just a few of the more egregious threats to personal freedom.

During the Carter administration, Congress passed the Foreign Intelligence Surveillance Act, which created a new federal court to approve electronic surveillance of citizens and resident aliens alleged to be acting on behalf of a foreign power. Until now, the FISA court granted surveillance authority if foreign intelligence was the primary purpose of an investigation. No longer. Under Section 218 of the USA PATRIOT Act, foreign intelligence need only be “a significant purpose” of an investigation. That sounds like a trivial change, but it isn’t. Because the standard for FISA approval is lower than “probable cause,” and because FISA now applies to ordinary criminal matters if they are dressed up as national security inquiries, the new rules could open the door to circumvention of the Fourth Amendment’s warrant requirements. The result: rubber-stamp judicial supervision of phone and Internet surveillance, even in regular criminal cases, and FBI access to medical, educational, and other business records that might conceivably relate to foreign intelligence probes.

The FISA revision is but one example of the government’s expanded powers to conduct searches and surveillance. There are others. Government will have access to some financial records, without notice or judicial review. While judicial approval is necessary to retrieve voicemail messages, the requisite court order can now be obtained with a minimal showing of relevancy. That same low standard governs traces on Internet surfing and email. Perhaps worst of all, under Section 213 of the Act, secret “sneak and peek” searches of physical property will be condoned in routine criminal investigations. Those searches can be conducted without knowledge of the property owner until a “reasonable” time after the search has occurred. No knowledge means no opportunity to contest the validity of the search, including such obvious infractions as rummaging through office drawers when the warrant authorizes a garage search, or even searching the wrong address.

On the money laundering front (Sections 301 through 377), the secretary of the treasury is empowered to label any jurisdiction a “primary money laundering concern,” in which case foreign banks will be required to disclose their customers and transactions. Predictably, the identified countries will be those with low tax structures and strict financial privacy laws. Yet there is little evidence that tax havens are a magnet for dirty money. In fact, when money is transferred across borders and back again, the risk of detection is high. That serves as a deterrent to such transactions. To punish nations that harbor terrorists and their assets, we should shut off U.S. access to financial institutions that refuse to provide evidence associated with the September carnage. We should also invoke existing bilateral agreements, and negotiate new agreements, waiving bank secrecy and requiring mutual cooperation when prosecuting terrorist acts.

Finally, civil libertarians are rightly alarmed that the attorney general can detain, for seven days, non-citizens suspected of terrorism. After seven days, pursuant to Section 412 of the Act, deportation proceedings must commence or criminal charges must be filed. Originally, the Justice Department had asked for authority to detain suspects indefinitely without charge. Congress could not be persuaded to go along. But the final bill, for all practical purposes, allows expanded detention simply by charging the detainee with a technical immigration violation. And if a suspect cannot be deported, he can still be detained if the attorney general certifies every six months that national security is at stake.

To illustrate the magnitude and scope of that problem, the Wall Street Journal reported on Nov. 1 that seven Democrats had filed Freedom of Information Act requests for a detailed accounting from Attorney General John Ashcroft on the status of more than 1,000 detainees. The lawmakers cited reports that “some detainees have been denied access to their attorneys, proper food, or protection from physical assault.” Some of them were allegedly being held in solitary confinement even though they hadn’t been charged with any criminal offense. According to a representative of the New York Legal Aid Society, several Arab detainees had been limited to one phone call per week to a lawyer and, if the line was busy, they had to wait another week.

Maybe those reports will turn out to be groundless. But it’s time for some answers. Here’s what the Washington Post had to say in an Oct. 31 editorial: “The Department of Justice continues to resist legitimate requests for information regarding the 1,017 people it acknowledges having detained in its investigation of the September 11 attacks. The questions are pretty basic. How many of the 1,000-plus are still in custody? Who are they? What are the charges against them? What is the status of their cases? Where and under what circumstances are they being held? The department refuses not only to provide the answers but also to give a serious explanation of why it won’t provide them.”

Ultimately, the Supreme Court may have to clarify how the civil liberties / national security tradeoff will unfold. This past term, in Zadvydas v. Underdown, the Court held that immigrants who have committed crimes cannot be detained indefinitely, but must be deported within a reasonable period or released. Moreover, said the Court, temporary and even illegal immigrants, not just U.S. citizens, are entitled to due process. Still, the Court noted that different rules may apply to immigrants who are denied entry, suspected of terrorism, or considered to be national security risks.

Thus, the law is murky; and the legislation passed in the aftermath of September’s events adds new elements of uncertainty. Nonetheless, the controlling principle is unambiguous. Any attempt by government to chip away at constitutionally guaranteed rights must be subjected to the most painstaking scrutiny to determine whether less invasive means could accomplish the same ends. The USA-PATRIOT anti-terrorism bill does not survive that demanding test. In a free society, we deserve better.

Robert A. Levy is a Senior Fellow in Constitutional Studies, Cato Institute
A version of this article orginally appeared in Liberty magazine.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Patriot Act Popular, Giving Bush An Edge
By Peter Wallsten
Los Angeles Times Service

Posted on Miami Herald
April 26, 2004

Democrats who expected to assail President Bush over the USA Patriot Act are backing off in view of polls that show support for it

WASHINGTON - Only months ago, Democrats were targeting the controversial USA Patriot Act as an ideal issue to use in their campaign against President Bush, assailing the law as an intrusion on civil rights. But in a turnabout, the act suddenly has emerged as a cornerstone of Bush’s reelection campaign, while Democratic rival Sen. John F. Kerry and others have toned down their criticism.
The Patriot Act is proving to be more popular in opinion polls than once expected, given its diverse range of critics. Also, both Democratic and Republican strategists now believe that public debate over the Patriot Act and other aspects of the nation’s response to terrorism only enhances Bush’s national security credentials while threatening to paint Kerry as soft on terrorism.

The result is that the Democrats have lost what once seemed like a useful tool for rallying opposition to the president.

`DANGEROUS TRAP’

‘’There’s a dangerous trap here for Democrats,'’ said Jim Mulhall, a Democratic strategist working with independent groups targeting Bush. “It’s a terribly unfair characterization, but . . . if Democrats are not careful, they will sound more like they’re worried about technical concerns than they are about locking up terrorists.'’

Kerry, the presumptive Democratic presidential nominee, recently has been couching his positions on the law as ‘’fixes,'’ whereas in December the Massachusetts senator called for ‘’replacing the Patriot Act with a new law that protects our people and our liberties at the same time.'’ Kerry has argued that his ideas would make the law, bashed repeatedly last year by nearly all of the Democratic presidential contenders, tougher than it is.

DEFENSE OF LAW

Bush showcased his aggressive support for the Patriot Act last week, appearing in Buffalo, N.Y., with the federal prosecutor who uncovered a suspected terrorist cell after the 2001 terrorist attacks in New York and at the Pentagon.

Bush argued that the law ‘’defends our liberty'’ against terrorists and should be strengthened. He said terrorists had been caught in part because of the new law, drawing applause from a crowd of invited guests.

Passed with overwhelming support from lawmakers and signed by Bush within two months of the Sept. 11, 2001, attacks, the USA Patriot Act gives officials more powers in conducting searches and seizures and in sharing information.

It allows the government to cite terrorism and computer fraud as the basis for requesting wiretaps; allows roving wiretaps to follow suspects no matter what telephones they use; and allows secret searches in which the authorities delay notifying a suspect.

Among other provisions, it allows the attorney general to detain any noncitizen believed to be a national-security risk, in some cases for long periods.

One key provision aims to remove a legal ‘’wall'’ that limited the sharing of information between criminal and intelligence investigators. Testimony before the independent Sept. 11 commission has suggested that the barrier inhibited authorities from learning more about the Sept. 11 hijackers before the attacks.

The Patriot Act has been an awkward issue at times for Bush, drawing criticism from some in his own conservative base. Critics have included not only the Democratic presidential candidates and the American Civil Liberties Union, but also libertarians, advocates for smaller government, and members of the National Rifle Association.

Last fall, the very mention of Attorney General John Ashcroft and criticism of his link to the Patriot Act was easily the biggest applause-getter at Democratic rallies. When Ashcroft embarked on a national tour to highlight the law’s benefits, he was greeted often by protesters.

NEW OPINION SURVEYS

But a series of new polls published last week have led strategists to conclude that the deftly named Patriot Act is a winner for Bush. Those polls also gave the president a lead over Kerry, despite weeks of potentially damaging footage of deadly chaos in Iraq, tough questions about Bush’s leadership on terrorism by the Sept. 11 commission, and a new book suggesting that Bush was intent on invading Iraq far earlier than was initially believed.

While polls have shown that certain aspects of the Patriot Act are unpopular when they are explained to voters, responses to broader questions suggest general support for the law.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Ashcroft Out of Control
By Nat Hentoff
February 28th, 2003

Many of the new security measures proposed by our government in the name of fighting the “war on terror” are not temporary. They are permanent changes to our laws. Even the measures that, on the surface, appear to have been adopted only as long as the war on terror lasts, could be with us indefinitely. Because, as Homeland Security director Tom Ridge himself has warned, terrorism is a “permanent condition to which America must . . . adjust.” American Civil Liberties Union, January 29.

Since September 11, 2001, a number of us at the Voice have been detailing the Bush administration’s accelerating war on the Bill of Rights,and the rising resistance around the country. This battle to protect the Constitution, and us, has entered a new and more dangerous dimension. On February 7, Charles Lewis, head of the Washington-based Center for Public Integrity, received a secret, but not classified, Justice Department draft of a bill that would expand the already unprecedented government powers to restrict civil liberties authorized by the USA Patriot Act. This new bill is called the Domestic Security Enhancement Act of 2003. Lewis, in an act of patriotism,since this still is a constitutional democracy,put the 86-page draft on the center’s Web site, where it still remains.(www.publicintegrity.org)

On the evening of February 7, Charles Lewis discussed this new assault on our fundamental liberties on Bill Moyers’s PBS program, Now. Three days later, on the editorial page of the daily New York Sun, primarily a conservative newspaper, Errol Louis wrote: “[The] document is a catalog of authoritarianism that runs counter to the basic tenets of modern democracy.” I have the entire draft of the bill. Section 201 would overturn a federal court decision that ordered the Bush administration to reveal the identities of those it has detained (imprisoned) since 9-11. This sequel to the USA Patriot Act states that “the government need not disclose information about individuals detained in investigations of terrorism until . . . the initiation of criminal charges.”

Many of the prisoners caught in the Justice Department’s initial dragnet were held for months without charges or contact with their families, who didn’t know where they were. And these prisoners were often abused and out of reach of their lawyers,if they’d been able to find a lawyer before being shifted among various prisons. When, after much pressure, the Justice Department released the numbers of the imprisoned, there were no names attached, until a lower court decided otherwise.

Under the proposed Ashcroft bill reversing that court decision, for the first time in U.S. history, secret arrests will be specifically permitted. That section of bill is flatly titled: “Prohibition of Disclosure of Terrorism Investigation Detainee Information.” In Argentina, those secretly taken away were known as “the disappeared.”

Moving on, under Section 501 of the blandly titled Domestic Security Enhancement Act of 2003, an American citizen can be stripped of citizenship if he or she “becomes a member of, or provides material support to, a group that the United States has designated as a ‘terrorist organization,’ if that group is engaged in hostilities against the United States.”

Until now, in our law, an American could only lose his or her citizenship by declaring a clear intent to abandon it. But,and read this carefully from the new bill,”the intent to relinquish nationality need not be manifested in words, but can be inferred from conduct.” (Emphasis added).

Who will do the “inferring”? A member of the Justice Department. Not to worry. As John Ashcroft’s spokeswoman, Barbara Comstock, says of objections to this draft bill: “The [Justice] department’s deliberations are always undertaken with the strongest commitment to our Constitution and civil liberties.” (This is a faith- based administration.)

What this section of the bill actually means is that if you provide “material support” to an organization by sending a check for its legal activities,not knowing that it has been designated a “terrorist” group for other things it does,you can be stripped of your citizenship and be detained indefinitely as an alien. While South Africa was ruled by an apartheid government, certain activities of the African National Congress were categorized as “terrorist,” but many Americans provided support to the legal anti-apartheid work of that organization.

Under Section 302 of John Ashcroft’s design for our future during the indefinite war on terrorism, there is another change in our legal system. Under current law, the FBI can collect DNA identification records of persons convicted of various crimes. But under the USA Patriot Act II, the “Attorney General or Secretary of Defense” will be able to “collect, analyze, and maintain DNA samples” of “suspected terrorists.” And as Georgetown law professor David Cole notes,”mere association” will be enough to involve you with suspected terrorist groups. What does “association” mean? For one thing, “material support,” under which you could lose your citizenship. In reaction to the stealth with which the Justice Department has been crafting this invasion of the Bill of Rights, Democratic senator Patrick Leahy of Vermont, ranking minority member of the Senate Judiciary Committee, said on February 10: “The early signals from the administration about its intentions for this bill are ominous. . . .

“For months, and as recently as just last week, Justice Department officials have denied to members of the Judiciary Committee that they were drafting another anti-terrorism package. There still has not been any hint from them about their draft bill.”

Leahy continued: “The contents of this proposal should be carefully reviewed, and the public must be allowed to freely engage in any debate about the merits of any new government powers the administration may seek.” But where is the debate in Congress or in the media? After a few initial press stories about the USA Patriot Act II, there has been little follow-up. To be continued here.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)