Discarded "Patriot Act II" Undermines Bush's Claims on NSA Surveillance
The Washington Post today reminds us of Patriot Act II, drafted by the Justice Department lawyers in February, 2003 and submitted secretly to members of Congress. When news of the draft leaked, the Justice Department claimed it was just something being debated, not something intended to be introduced.
Why it matters now: It undermines Bush and Gonzales' claims that Bush didn't need Congress' approval or an amendment of FISA to engage in his warrantless electronic surveillance program, instituted in 2001.
Some background: Patriot Act II was officially called the Domestic Security Surveillance Act of 2003. The Center for Public Integrity still has the complete bill on their website, (text here, pdf) along with the control sheet (pdf) from the Office of Legislative Affairs showing that it was directed to House Speaker Denny Hastert and Veep Dick Cheney.
While there is a lot to say about this bill (and I reported on it regularly in early 2003), the kickers are this: While the Patriot Act of 2001 was aimed at tearing down the wall between foreign intelligence gathering and criminal investigations, this 2003 sequel was designed to tear down the wall between international and domestic terrorist surveillance -- just like Bush's warrantless NSA program.
Read sections 103 and 104. If Bush and the Justice Department thought he had these powers all along, why would they bother to try and amend FISA? From the Public Integrity site link:
The Domestic Security Enhancement Act is the latest development in an 18-month trend in which the Bush Administration has sought expanded powers and responsibilities for law enforcement bodies to help counter the threat of terrorism.
The USA Patriot Act, signed into law by President Bush on Oct. 26, 2001, gave law enforcement officials broader authority to conduct electronic surveillance and wiretaps, and gives the president the authority, when the nation is under attack, to confiscate any property within U.S. jurisdiction of anyone believed to be engaging in such attacks. The measure also tightened oversight of financial activities to prevent money laundering and diminish bank secrecy in an effort to disrupt terrorist finances.
It also changed provisions of Foreign Intelligence Surveillance Act, which was passed in 1978 during the Cold War. FISA established a different standard of government oversight and judicial review for "foreign intelligence" surveillance than that applied to traditional domestic law enforcement surveillance.
The USA Patriot Act allowed the Federal Bureau of Investigation to share information gathered in terrorism investigations under the "foreign intelligence" standard with local law enforcement agencies, in essence nullifying the higher standard of oversight that applied to domestic investigations. The USA Patriot Act also amended FISA to permit surveillance under the less rigorous standard whenever "foreign intelligence" was a "significant purpose" rather than the "primary purpose" of an investigation.
The draft legislation goes further in that direction. "In the [USA Patriot Act] we have to break down the wall of foreign intelligence and law enforcement," Cole said. "Now they want to break down the wall between international terrorism and domestic terrorism."
The draft bill was a real doozy, a compilitation of measures that would violate civil rights on an unprecedented scale. Congress was not consulted about it. The bill was leaked when word got out it had been sent to Hastert and Cheney, and the Adminstration immediately began backtracking, claiming it was just in discussion. As Georgetown Law Prof and civil liberties expert David Cole said at the time,
What that suggests is that they're waiting for a propitious time to introduce it, which might well be when a war is begun. At that time there would be less opportunity for discussion and they'll have a much stronger hand in saying that they need these right away."
It should have been a huge story then, but only a few newspapers and blogs covered it:
Of major papers included in Nexis, the Washington Post gave the story the most prominent treatment, with a front-page article (2/8/03), a news brief (2/11/03) and an editorial (2/12/03). The New York Times and Los Angeles Times ran articles on the draft legislation the same day, but on inside pages (A10 and A24, respectively). The Chicago Tribune printed a version of the Los Angeles Times story, and New York's Newsday ran an article about Patriot II on page two. Aside from a brief news item in the Seattle Times (2/8/03) and editorials in the San Francisco Chronicle and Rocky Mountain News (2/11/03), that was the extent of the stories Ashcroft's plans generated.
Jake Tapper of Salon did a prominent feature of it at the time. I wrote 18 posts about it between February and April, 2003.
Among its other provisions, according to Professor Cole:
"[It]would radically expand law enforcement and intelligence gathering authorities, reduce or eliminate judicial oversight over surveillance, authorize secret arrests, create a DNA database based on unchecked executive 'suspicion,' create new death penalties, and even seek to take American citizenship away from persons who belong to or support disfavored political groups."
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