Saturday, May 17, 2008
Despite official denials, Attorney General John Ashcroft has grand plans for new anti-terror legislation. Critics -- on the left and the right -- are worried.
Feb 11, 2003 | 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."
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