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The following document is from http://www.thenation.com/doc.mhtml?i=20030317&s=cole
Patriot Act's Big Brother
by DAVID COLE
[from the March 17, 2003 issue of The Nation]
In early February, the Center for Public Integrity disclosed a leaked
draft of the Bush Administration's next round in the war on
terrorism--the Domestic Security Enhancement Act (DSEA). The draft
legislation, stamped Confidential and dated January 9, 2003, appears to
be in final form but has not yet been introduced in Congress. Presumably
the Administration had determined that the timing would be more
propitious for passage--meaning less propitious for reasoned
debate--after we go to war with Iraq. But it is one thing to play
politics with the timing of a farm bill; it is another matter to do so
with a bill that would radically alter our rights and freedoms.
If the Patriot Act was so named to imply that those who question its
sweeping new powers of surveillance, detention and prosecution are
traitors, the DSEA takes that theme one giant step further. It provides
that any citizen, even native-born, who supports even the lawful
activities of an organization the executive branch deems "terrorist" is
presumptively stripped of his or her citizenship. To date, the "war on
terrorism" has largely been directed at noncitizens, especially Arabs
and Muslims. But the DSEA would actually turn citizens associated with
"terrorist" groups into aliens.
They would then be subject to the deportation power, which the DSEA
would expand to give the Attorney General the authority to deport any
noncitizen whose presence he deems a threat to our "national defense,
foreign policy or economic interests." One federal court of appeals has
already ruled that this standard is not susceptible to judicial review.
So this provision would give the Attorney General unreviewable authority
to deport any noncitizen he chooses, with no need to prove that the
person has engaged in any criminal or harmful conduct.
A US citizen stripped of his citizenship and ordered deported would
presumably have nowhere to go. But another provision authorizes the
Attorney General to deport persons "to any country or region regardless
of whether the country or region has a government." And failing
deportation to Somalia (or a similar place), the Justice Department has
issued a regulation empowering it to detain indefinitely suspected
terrorists who are ordered deported but cannot be removed because they
are stateless or their country of origin refuses to take them back.
Other provisions are designed to further insulate the war on terrorism
from public and judicial scrutiny. The bill would authorize secret
arrests, a practice common in totalitarian regimes but never before
authorized in the United States. It would terminate court orders barring
illegal police spying entered before September 11, 2001, without regard
to the need for judicial supervision. It would allow secret government
wiretaps and searches without even a warrant from the supersecret
Foreign Intelligence Surveillance Court when Congress has authorized the
use of force. And it would give the government the same access to credit
reports as private companies, without judicial supervision.
Historically, we have imposed a higher threshold, and judicial
oversight, on government access to such private information, because
government has the motive and the wherewithal to abuse the information
in ways private companies generally do not.
But the trajectory of the war on terrorism is probably best illustrated
by an obscure provision that would eliminate the distinction between
domestic terrorism and international terrorism for a host of
investigatory purposes. The Administration's argument sounds reasonable
enough--terrorism is terrorism, whether it's within the United States or
has an international component. But in the Patriot Act debates, the
Administration argued that it should be afforded broader surveillance
powers over "international terrorism" because such acts are
simultaneously a matter of domestic law enforcement and foreign
intelligence. Because foreign intelligence gathering has traditionally
been subject to looser standards than criminal law enforcement, the
government argued, the looser standards should extend to domestic
investigations of "international terrorism." But now it proposes to
extend the same loose standards to investigations of wholly domestic
crimes.
The DSEA's treatment of expatriation and domestic terrorism are
harbingers of things to come. Thus far, much of the war on terrorism has
been targeted at foreign nationals and sold to the American people on
that ground. Americans' rights are not at stake, the argument goes,
because we're concerned with "international" crime committed mostly by
"aliens." With the DSEA, however, the Administration seeks to transgress
both the alien-citizen line, by turning citizens into aliens for their
political ties, and the domestic-international line, extending to wholly
domestic criminal-law-enforcement tools that were previously reserved
for international terrorism investigations.
How will Congress respond? Thus far, when citizens' rights have been
directly threatened, Congress has taken civil liberties seriously. Most
recently, it blocked the Pentagon's Total Information Awareness
data-mining program. But it blocked it only as applied to US citizens.
As long as the Pentagon violates only foreign nationals' privacy,
Congress in effect said, Go ahead. But that tactic--protecting citizens'
rights while ignoring those of foreign nationals--is untenable, not only
on moral grounds but because if the Administration gets its way, we are
all potentially "aliens."
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