February 24, 2003

Last modified February 24, 2003 - 12:21 am

By CHARLES LEVENDOSKY
Casper Star-Tribune

That's precisely the view taken by House Judiciary Committee Ranking Member John Conyers, D-Mich, in a letter he wrote to the Department of Justice.

Nearly unchecked powers

The proposed Domestic Security Enhancement Act of 2003 is not merely radical, it grants the U.S. attorney general nearly unchecked powers in a wide arena of law enforcement. DSEA greatly expands the powers the USA Patriot Act granted the Department of Justice and federal law enforcement agencies.

Speaker of the House J. Dennis Hastert, R-Ill., and Vice President Dick Cheney, as president of the Senate, each received a copy of DSEA on Jan. 10, according to a control sheet issued by the Department of Justice Legislative Affairs Office. No other member of Congress received a copy.

For months, Justice Department officials were telling Sen. Patrick Leahy, D-Vt., ranking Democratic member of the Senate Judiciary Committee, that the department was not drafting another anti-terrorism bill. Now, here it is full blown, Patriot Act II.

The DSEA isn't a working paper. It's a complete proposal for legislation. One cannot escape the ramifications. The thoroughness of DSEA is meant to discourage congressional changes, deletions or amendments. In total, it contains another wish list for federal law enforcement authority, while minimizing any checks on that authority.

Elements of a leaked copy of the confidential document were made public on the PBS television program "NOW with Bill Moyers" on Feb. 7. The 120-page document contains 33 pages of analysis; the other 87 pages contains the proposed legislation.

The first 11 sections of DSEA would broaden the authority of the Foreign Intelligence Surveillance Act and the authority of the secret FISA court the act created.

Sections 128 and 206 impose gag orders on any person who receives a subpoena in regard to a terrorist investigation. That person could only inform his or her attorney of the subpoena.

Section 201 would empower the Justice Department to conduct secret arrests when investigating international terrorism. Those arrests would remain secret until criminal charges are filed. According to prominent constitutional attorney David Cole of Georgetown University Law Center, "Never before in our history have we permitted secret arrests. This expressly authorizes the practice of secret arrests."

And, of course, a person under secret arrest might never have charges filed against him. In which case the person is either quietly let out of prison or languishes there.

Section 204 allows the government to make secret presentations of evidence to the court which neither the defendant or his attorney can see.

Sections 301 to 306 of DSEA authorize the collection of DNA records and DNA samples for the creation of an identification database that would include DNA records of those "suspected" of terrorism, or who belong to certain classes of aliens.

Section 501 would allow the federal government to strip the citizenship of an American citizen, if that person provided "material support" to a group the United States has designated as a terrorist organization. If you gave money to an overseas religious charity -- later classified as a front organization for a terrorist group -- you could lose your citizenship.

Deportation authority

Section 503 gives the U.S. attorney general unchecked authority to deport any person, including lawful, permanent residents -- whenever he determines their presence is inconsistent with our national security.

This could happen even if the noncitizen were law abiding and had not violated any immigration laws.

National security can be interpreted to mean, according to Cole, "national defense, foreign policy, or economic interests." Basically, the U.S. attorney general can conclude that the presence of a lawful permanent resident is "inconsistent with our economic interests and he can deport the person," Cole said. The deportation would not be reviewable by the courts.

DSEA would eliminate the necessity of obtaining a grand jury subpoena or court order to access someone's credit report. It would allow the government to get a pen register on any American citizen without regard to suspected criminal or terrorist activity. Pen registers are surveillance devices that capture the phone numbers dialed on outgoing telephone calls.

Other provisions of the bill eliminate judicial oversight over various surveillance actions. After Congress authorizes the use of force, the U.S. attorney general can conduct wiretaps for 15 days without court oversight and without going to the FISA court -- according to Section 103.

DSEA goes far beyond the Patriot Act in its attack on the basic liberties supposedly guaranteed by the U.S. Constitution. It attacks the fundamental framework of our democracy by removing the system of checks and balances that hold it together and make it work.

And the DSEA institutionalizes secret arrests -- that, in itself, is an anathema to freedom and democracy.

Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, can be reached at levendos@trib.com.