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."
What if a disgruntled business competitor chooses to falsely claim you're a "suspected terrorist"? Once again, too bad. Don't consider suing the competitor. Patriot II eliminates liability for businesses and employees who report "suspected terrorists" to the federal government, no matter how malicious or unfounded the tip.
Like TIA, Operation TIPS -- which would have enlisted government employees to spy on citizens -- elicited public outcry. But this is TIPS all over again. If they like, your package courier or cable guy could report you to the feds with impunity.
For a shred of privacy that might remain, don't even think about trying to protect your e-mail. Under Patriot II, the government may go after you for that, too.
While the government, under Patriot II, has the right to know virtually everything about you, you have little right to know anything about the government.
Current grand jury secrecy rules apply only to jurors, prosecutors and courtroom staff. Patriot II would expand them to apply to witnesses -- meaning ordinary citizens couldn't discuss their testimony with anyone but their attorney. In theory, they'd have to keep mum even with spouses or children, or face serious consequences.
What if they'd been improperly subpoenaed in the first place? Under Patriot II, too bad: Neither individuals nor organizations could move to quash a federal grand jury subpoena. Will the grand jury itself at least remain independent? Nope. Patriot II allows the feds to place gag orders on both federal and state grand juries, and to take over the proceedings.
Detentions will be similarly shrouded in an atmosphere of dead secrecy. The Justice Department's position on detainees is that if they are held incommunicado indefinitely without being charged with a crime, they need not be publicly identified. Patriot II would make that dubious position the law.
Meanwhile, if you happen to somehow find out the identity or whereabouts of a detainee, it would be criminal under Patriot II to reveal it. And that's the case even if you're the detainee's parent, spouse or child.
OK, you might ask, this is a lot of secrecy, but isn't it at least somewhat limited? Can't I at least use the Freedom of Information Act to figure out what the government is doing when it's not secretly detaining people or secretly conducting grand jury proceedings?
No. Under Patriot II, FOIA wouldn't extend to information "specifically exempted from disclosure by statute." What kind of statutes? Well, the USA Patriot Act might be one. Patriot II might be another.
It's a clever strategy: Collect private information. Then, when citizens try to find out what you've collected, cite their own privacy right back at them as a reason not to divulge it. If such a strategy seems far-fetched, consider that Ashcroft actually has cited detainees' privacy as a reason not to release their names to the press, the public or even their families.
So Patriot II puts in jeopardy the right to speak freely, privacy rights, the right to go to court to challenge government illegality and the right against unreasonable searches and seizures. But that's not all.
It also puts in jeopardy perhaps the most basic right of all: The right to walk the streets in safety without being "disappeared" by the government. Chileans haven't always enjoyed this right. Americans, until now, have.
Suppose you, as a citizen, attended a legal protest for which one of the hosts, unbeknownst to you, is an organization the government has listed as terrorist. Under Patriot II, you may be deported and your American citizenship taken away.
Under Patriot II, if you are simply suspected -- not proved, just suspected -- of terrorist activity, this can occur. More specifically, a citizen may be expatriated "if, with the intent to relinquish his nationality, he becomes a member of, or provides material support to, a group that the United States has designated as a "terrorist organization.'"
How can you tell if the citizen wanted to relinquish citizenship? Under Patriot II, the intent can be inferred from conduct. So any association with even the legal activities of a designated group, plus any act that can be interpreted as disloyal to the United States, can mean you are deported and no longer considered a citizen.
The original USA Patriot Act has sunset provisions, under which it will expire if not renewed in five years. Patriot II doesn't have such provisions. Indeed, it would remove this check from the original Patriot Act. So if Congress and the American people don't focus carefully on Patriot II, even in the midst of impending war, we may be stuck with both Patriot acts indefinitely.
Especially for that reason, Congress and the public need to learn more. Sen. Patrick Leahy, D-Vermont, has argued, for instance, that before the Justice Department asks Congress for more powers, it needs to disclose how it is using the ones it already has. Instead, the department has repeatedly balked at both FOIA requests from the press and the public, and requests from Congress for more detailed reporting regarding the USA Patriot Act.
Anita Ramasastry is an assistant professor of law at the University of Washington. This story originally appeared on FindLaw.com.
