On February 7, there appeared on the Web site of the Center for Public Integrity an eighty-six-page draft of the Justice Department’s proposed sequel to the USA PATRIOT Act. It so radically subverts the constitutional rights of Americans—far more than even the original USA PATRIOT Act—and so appalled a member of John Ashcroft’s staff that he or she leaked it to Charles Lewis, head of the Committee for Public Integrity.
That very night, Charles Lewis revealed parts of that proposed law on Bill Moyer’s PBS television program, Now. As a result, some newspapers, but hardly any television news operations, reported these new Ashcroft-directed revisions of the Bill of Rights. But mostly, it was only a one or two-day story. The media is on the treadmill of the twenty-four-hour news cycle, which allows for few follow-ups, even to stories that bear directly on Lance Mor row’s warning in the March 17, 2003, Time magazine:
Keeping the Constitution will be as vital to the American future as fending off terrorists. More so. If Americans win a war (not just against Saddam Hussein) and lose the Constitution, they will have lost everything.
Here is some of what we will lose in what the Justice Department blandly calls the Domestic Security Enhancement Act of 2003. What must be kept in mind is that, while this legislation is Attorney General Ashcroft’s design, it is fully supported by George W. Bush. Much of the Democratic leadership in Congress—as well as the horde of Democratic presidential aspirants—have been silent on the disappearing Bill of Rights.
Section 501 would strip Americans of their citizenship for providing “material support” to a group designated by the administration as “terrorist.” If you were to send a check for an organization’s legal activities, without knowing of its other actions (as many Americans did to the African National Congress during the apartheid years), you could lose what Chief Justice Earl Warren called “the right to have rights.”
Until this Justice Department proposal, an American could only lose citizenship if he or she expressed a clear intent to abandon it. But under PATRIOT Act II, the government need only “infer” your intent to be without a country. You could be imprisoned indefinitely, if the government chose, as “an enemy combatant.”
Section 201 voids a federal court decision ordering the Justice Department to reveal the names of hundreds of people it “detained” in the roundup of noncitizens after September 11. As the Lawyers Committee for Human Rights points out, this would be the first time in American history in which the government would “explicitly authorize secret arrests.” Remember the mothers in Argentina witnessing, in dread silence, for “the disappeared?”
Also, in addition to the extraordinary range of electronic surveillance and other methods of tracking us in the USA PATRIOT Act and subsequent unilateral moves by Ashcroft, this sequel—in Section 303—permits the government to “collect, analyze, and maintain DNA samples” of suspected terrorists. Previously, the Federal Bureau of Investigation could lawfully collect DNA identification records only of people convicted of various crimes. If you gave an organization or an individual on a government terrorist list “material support,” you could be added to the ever-widening DNA pool. Georgetown University law professor David Cole says that “mere association” with such suspects could involve you.
Remember Operation TIPS, a Justice Department plan that would have encouraged American truckers, delivery personnel, and others involved in our daily lives to spy on us for “suspicious” activities or speech? It was struck out of the Homeland Security Department bill by conservative Republican Dick Armey, also a libertarian. But PATRIOT Act II revives this additional way for the government to put us in its databases.
As the American Civil Liberties Union (ACLU) warns, Section 313 provides “an incentive for neighbor to spy on neighbor . . . by granting blanket immunity to businesses that phone in false terrorism tips—even if their actions are taken with reckless disregard for the truth.” (Emphasis added.)
Section 202 has a startling amendment to the Clean Air Act that could put you in the hospital. As reported in the ACLU’s nineteen-page section-by-section analysis of PATRIOT Act II (www.aclu.org/SafeandFree/SafeandFree.cfm), this would eviscerate the Clean Air Act’s requirement that “corporations that use potentially dangerous chemicals must prepare an analysis of consequences of the release of such chemicals to surrounding communities.”
But, if Congress passed this part of the legislation, local residents will be excluded from meaningful access to crucial information. Corporation disclosures will be available only in government reading rooms “in which copies could not be made and notes could not be taken.” Moreover—and it’s a big moreover—these documents will not include “such basic information as ‘identity or location of any facility or any information from which the identity or location of the facility could be deduced.’”
So much for informing local residents of the plagues that might befall them. Only government officials would have fuller access to this vital information. And “government whistleblowers who reveal any information restricted under this section commit a criminal offense,” the ACLU emphasizes, “even if their motivation was to protect the public form corporate wrongdoing or government neglect.”
Three days after this Justice Department draft bill was leaked by a whistleblower on Ashcroft’s staff, Senator Patrick Leahy of Vermont, ranking Democratic member of the Judiciary Committee, released this statement: “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. . . . The early signals from the administration about its intentions for this bill are ominous.”
A secret government is, by its nature, ominous, and ours is becoming precipitously ominous.
Nat Hentoff is a regular columnist for the Village Voice, Legal Times, Washington Times, and Editor & Publisher, a United Media syndicated columnist, and the author of Living the Bill of Rights (University of California Press).