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Son of Patriot Act

Ashcroft's scary sequel could snag your DNA, your citizenship, and snoop your credit records

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Soon after the Sept. 11 terrorist attacks, Congress passed the USA Patriot Act, which conferred broad powers upon the government. Now, John Ashcroft and his scribes at the Justice Department have been working secretly on new legislation that would expand greatly upon these already sweeping powers. This daring sequel to the Patriot Act is known internally as the Domestic Security Enhancement Act. It's also nicknamed Patriot II, or Son of Patriot. Earlier this month, a 120-page draft was exposed to the public -- but not by the government, only through a leak.

Congress appears to have played little or no part in drafting the legislation. Perhaps the Bush administration is looking to repeat its experience with the original Patriot Act. Amid the emotional turmoil after Sept. 11, the White House introduced the act and got it enacted in a matter of weeks.

There was at least some rationale for this expedited consideration. Now, there is far less. If the introduction of Patriot II in Congress coincides with the Iraq war, it may well be because the administration has planned it that way, to take advantage of circumstances to ram the bill through both houses quickly.

Even if Patriot II does end up being introduced in wartime, many citizens and their representatives are still expected to fight it tooth and nail. Why? It threatens to take even more of our liberties. In fact, some observers are saying this is a wholesale assault on privacy, free speech and freedom of information the likes of which haven't been seen in the US in nearly 100 years.

Admiral Poindexter's proposed Total Information Awareness program, which sought to build data profiles on all Americans, sparked a public outcry last fall. Congress recently warned against using TIA as a tool against citizens. Nevertheless, Patriot II, as drafted by the attorney general and his staff, would begin to make TIA the law.

For instance, under Patriot II, federal agents wouldn't need a subpoena or a court order to access our credit reports. This provision would open the wedge for TIA to be implemented through a huge database. To see the information, the feds would only have to certify that they were using the information "in connection with their duties to enforce federal law." Note that they wouldn't have to certify that the person whose information was accessed was suspected of terrorism or any other crime. And no one would be notified that their records had been accessed.

If Patriot II were passed, the government also would collect genetic information. DNA would be put into a "Terrorist Identification Database," which would contain information not only on proven terrorists but on "suspected terrorists" as well. That term would include anyone who was associated with, or had provided money or other support for groups designated "terrorist."

The database also might include protesters or anyone else the government dislikes. Remember, the original Patriot Act defines the new crime of "domestic terrorism" broadly, to encompass "any action that endangers human life that is a violation of any federal or state law." It's not hard to envision a disruptive war protester who resisted arrest being tagged as a "suspected domestic terrorist" and forced to provide DNA.

Would the government need to get a court order to procure the DNA? Not under Patriot II. And what if the protester wouldn't comply? That would be punishable by up to one year in prison and a $100,000 fine. Anyway, the protester's refusal to give up DNA might be futile -- if any other government agency happens to have a blood sample, Patriot II gives the government the right to put it in the new database. Incredibly, DNA also would be collected from anyone who is or has been on probation for any crime, no matter how minor.

Under Patriot II, database surveillance would be combined with increased active surveillance. The Patriot Act itself greatly expanded surveillance powers. Patriot II would make it even easier for the government to spy on citizens without having to establish traditional probable cause under the Fourth Amendment. How? It would make it easier for law enforcement to avail itself of the Foreign Intelligence Surveillance Court, which issues warrants more easily than federal district courts do.

The Surveillance Court is meant to address international terrorism. Patriot II collapses the distinction between domestic and international terrorism, treating wholly domestic criminal acts as subject to the same, looser legal rules that apply to foreign intelligence gathering.

If you don't like the government's policies, Patriot II says: Too bad. Don't try to make a federal case out of it -- we'll bar you at the courthouse door.

What if you're lucky enough to discover that you've been spied on illegally? Again, too bad. Patriot II would provide immunity to law enforcement engaging in spying operations. The proposed act provides a defense for federal agents who engage in unauthorized searches and surveillances relating to foreign intelligence when they are acting "pursuant to a lawful authorization from the president or the attorney general."

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