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ACLU says new Ashcroft Bill erodes checks and balances on Presidential power; PATRIOT II legislation would needlessly infringe on basic constitutional liberties

01 February 2003

Text of the: Domestic Security Enhancement Act of 2003

WASHINGTON -- The American Civil Liberties Union today said that new Department of Justice "anti-terrorism" legislation goes further than the USA PATRIOT Act in eroding checks and balances on Presidential power and contains a number of measures that are of questionable effectiveness, but are sure to infringe on civil liberties.

"The new Ashcroft proposal threatens to fundamentally alter the Constitutional protections that allow us to be both safe and free," said Timothy H. Edgar, an ACLU Legislative Counsel. "If it becomes law, it will encourage police spying on political and religious activities, allow the government to wiretap without going to court and dramatically expand the death penalty under an overbroad definition of terrorism."

The Department of Justice has been drafting the new legislation -- called the Domestic Security Enhancement Act of 2003 -- in secret over the past several months. It contains a multitude of new and sweeping law enforcement and intelligence gathering powers and expands on many provisions in the controversial USA PATRIOT Act, passed in late October 2001.

The big picture implications of the bill, the ACLU said, include a severe diminishment of basic checks and balances on the power of the executive branch of government and a continuing love affair with untested and likely ineffective security measures, which will, in addition to not making America any safer, infringe on basic liberties -- especially personal privacy and the freedoms of speech, association and religion.

Provisions in the Attorney General’s bill would allow the government to strip citizenship from any American who provides support for a group designated by the federal government as a "terrorist organization" (section 501). Significantly, the USA PATRIOT Act broadened the definition of groups that could be so designated to potentially include domestic protest organizations such as Operation Rescue or People for the Ethical Treatment of Animals.

Also included are provisions permitting -- without court order and at the sole discretion of the Attorney General -- wiretapping of Americans for 15 days (sections 103, 104) without a declaration of war by Congress, if the Executive Branch decides unilaterally that an attack has created an emergency. While the Justice Department would have to check in with a judge after the 15 days, the information gleaned during that period could still be retained and used against innocent Americans, the ACLU said.

Other contentious proposals in the draft legislation include statutory authority for secret detentions and the termination of court-approved limits on police spying. Also, the draft bill would apply the death penalty to offenses that, because of the redefinition of domestic terrorism in USA PATRIOT, could sweep in protest tactics that "involve violent acts or acts dangerous to human life." Under the law, the ACLU said, if an anti-war protestor broke the law during a demonstration and someone died as a result, the protestor could be subject to the death penalty.

These provisions are only a sampling of the civil liberties concerns in the Ashcroft proposal, the ACLU said. Specifically, the bill, if signed into law, would also:

* Make it easier for the government to initiate surveillance and wiretapping of U.S. citizens under the shadowy, top-secret Foreign Intelligence Surveillance Court. (Sections 101, 102 and 107)

* Shelter federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials. (Section 106)

* Authorize, in statute, the Department of Justice’s campaign of secret detentions by including a provision that would preempt federal litigation challenging non-disclosure of basic information about detainees. (Section 201)

* Threaten public health by severely restricting access to crucial information about environm