In January 2003, the Center for Public Integrity published a leaked copy of legislation being prepared by the Justice Department. Quickly dubbed Patriot Act II, the draft bill created an uproar for its draconian expansion of the Constitution-gutting provisions of the original Patriot Act. That uproar scuttled any chances of the bill being introduced, let alone becoming law, in 2003.
Welcome to 2004, when it is becoming law.
Piece by piece, the provisions that created the uproar 18 months ago are now finding their way into other legislation. The first blow came last December, when an un‑ related last-minute rider was inserted into the Intelligence Authorization Act, the annual bill that authorizes spending for covert agencies. The rider vastly expanded Patriot's provisions, allowing the government to search and seize, without warrants, records of businesses suspected of terrorist connections, by designating virtually any transaction in society a business transaction. It was signed into law the day Saddam Hussein was captured.
That was bad enough. Now comes HR 3179, also known as the Anti-Terrorism Intelligence Tools Improvement Act of 2003, a bill waiting for markup in the House Judiciary Committee, which held a hearing on it last month. HR 3179 is slated for fast-track passage—it was originally going to be passed through committee with no hearing at all—and would supplement Patriot by specifying penalties for crimes newly defined by the original act and by expanding the range of people who could be placed under surveillance for potential terrorist ties. For example, it would set a sentence of a year in prison for anyone violating the secrecy orders laid out when the FBI searches the records of businesses, libraries, or other institutions the public uses—and which were expanded into Patriot's umbrella by last December's Intelligence Authorization Act rider. Anyone who violates that secrecy order with the "intent to obstruct an investigation" could get up to five years in prison.
HR 3179 is one of at least six bills in Congress that contain provisions originally found in the Patriot II draft bill leaked in 2003. Others include HR 3037, the Anti- Terrorism Tools Enhancement Act of 2003; HR 2934 and SB 1604, the Terrorist Penalties Enhancement Act of 2003; and HR 3040 and SB 1606, the Pretrial Detention and Lifetime Supervision of Terrorists Act of 2003. Most of these deal, again, with defining or expanding penalties for the crimes hastily written into law by the original Patriot Act.
Last year's Patriot II included a number of additional horrific provisions. Among them: the ability of the federal government to declare individuals, whether or not they are citizens, to be official enemies with whom the United States is at war; expanding the definition of espionage or "enemy" activity to include otherwise lawful activity, as well as activity that, knowingly or not, assists a foreign power (which could be an individual); prohibition of publicizing information on who the government "detains"; creation of a DNA database of suspected terrorists; and the creation of several new crimes eligible for the federal death penalty.
It seems without question at this point that Patriot, Patriot II, and these related new bills are all part of an overarching plan to vastly expand state power to investigate, prosecute, and penalize people under the umbrella of the War on Terror. A number of the aspects of Patriot II become particularly dangerous when combined with other Bush administration precedents, such as declaring that "enemy combatants," particularly non‑ citizens, are people who can be held indefinitely without trial or access to counsel. By stripping a suspected "terrorist" of citizenship, for example, the government would become freer to detain that person indefinitely without ever having to present evidence or witnesses for cross-examination.
This web of mutually reinforcing policies and bills is dangerous. The controversial provisions that didn't make it into the original Patriot Act, too, are likely to be returning to Congress—quite possibly, as with last December's rider, with little notice or public debate.
When they come, members of Congress, and the public, will have to be ready to act quickly. It's clear that Patriot II is one bad idea that's not likely to go away.