ACLU Says New Ashcroft Bill Erodes Checks and Balances on Presidential Power; PATRIOT II Legislation Would Needlessly Infringe on Basic Constitutional Liberties

February 12, 2003

FOR IMMEDIATE RELEASE
Contact: media@dcaclu.org

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.

For a detailed section-by-section analysis of the draft bill, go to:
 /cpredirect/17203

"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. (Section 411)

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 environmental health risks posed by facilities that use dangerous chemicals. (Section 202)    
  • Harm Americans' ability to receive a fair trial by limiting defense attorneys from challenging the use of secret evidence. (Section 204)    
  • Reduce the ability of grand jury witnesses in terrorism investigations to defend themselves against public accusations by gagging them from discussing their testimony with the media or the general public. (Section 206)    
  • Allow for the sampling and cataloguing of innocent Americans' genetic information without court order and without consent. (Sections 301-306)    
  • Permit, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement. (Section 311)    
  • Undercut trust between police departments and immigrant communities by opening sensitive visa files to local police for the enforcement of complex immigration laws. (Section 311)    
  • Terminate court-approved limits on police spying, which were initially put in place to prevent McCarthy-style law enforcement persecution based on political or religious affiliation. (Section 312)    
  • Provide an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcroft's "Operation TIPS" by granting blanket immunity to businesses that phone in false terrorism tips, even if their actions are taken with reckless disregard for the truth. (Section 313)    
  • Further criminalize association -- without any intent to commit acts of terrorism -- with unpopular organizations labeled as terrorist by our government. (Section 402)    
  • Under the pretext of fighting terrorism, unfairly target undocumented workers with extended jail terms for common immigration offenses. (Section 502)    
  • Provide for summary deportations without evidence of crime or criminal intent, even of lawful permanent residents, whom the Attorney General says are a threat to national security. (Section 503)    
  • Abolish fair hearings for lawful permanent residents convicted of criminal offenses through an "expedited removal" procedure, and prevent any court from questioning the government's unlawful actions by explicitly exempting these cases from habeas corpus. Congress has not exempted any person from habeas corpus -- a protection guaranteed by the Constitution -- since the Civil War. (Section 504) 
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