Critics of Anti-Terror Law Warn about Dangers of Sequel

By Steve Brown | July 7, 2008 | 8:29 PM EDT

( - Libertarians still critical of the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act find a further erosion of civil liberties in a leaked Justice Department memorandum outlining a second PATRIOT Act that is expected to be submitted to Congress in the coming months.

In response to the leaked memo, obtained by the Center for Public Integrity, the Justice Department said there were no formal proposals for PATRIOT II submitted either to Attorney General John Ashcroft or President Bush.

It would be premature to speculate on any future decisions, particularly ideas or proposals that are still being discussed at staff levels," Barbara Comstock, director of public affairs for the Justice Department, stated in a press release.

However, another spokesperson who did not want to be identified, told that the department was in the process of preparing a legislative package on anti-terrorism measures for the consideration of Congress "in the near future."

At a Capitol Hill briefing this week, Tim Lynch, director of the Cato Institute's project on criminal justice, warned congressional staffers not to "make the same mistake as we did on the first PATRIOT Act." Calling the legislation "a textbook case of how not to do it," Lynch said the bill was too bulky and should have been introduced in several pieces.

"These gigantic, telephone book-sized bills should be completely unacceptable. They should be broken down into smaller parts and voted on separately," Lynch said. "Keeping these bills in these gigantic packages just increases the chances of bad or unwise provisions being enacted into law."

Lynch added that lawmakers "should insist on sunset provisions" when crafting PATRIOT Act II. The passage of PATRIOT I rested on a compromise by lawmakers to "sunset" or expire certain provisions at the end of 2005.

Lynch said "no reasonable objection" could be raised to the idea of sunset provisions in PATRIOT II.

However, Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) recently announced he might use pending anti-terrorism legislation as a vehicle for stripping the sunset provisions from PATRIOT I, making those government powers permanent. The pending bill (S. 123), co-sponsored by Sens. Jon Kyl (R-Ariz.) and Charles Schumer (D-N.Y.), expands the government's power to wiretap and use additional surveillance on lone terrorists.

Hatch's spokeswoman, Margarita Tapia, told the PATRIOT sunset removal amendment was meant to deter Democrats from offering their own amendments that would "weaken" S. 123. The bill is expected to hit the Senate floor shortly after lawmakers return from their spring recess at the end of April.

"We want to see that bill (S. 123) passed the way it was reported out of the Judiciary Committee on March 6, without any amendments," Tapia said.

Jim Dempsey, executive director for the Center for Democracy and Technology, said PATRIOT II reflected many of the same alarming themes as PATRIOT I. He said these include: removal of judicial oversight, removal of checks and balances, and "across-the-board expansions of government power" in some instances completely unrelated to terrorism.

Dempsey outlined the suspect PATRIOT II provisions. These provisions:

-- Grant FBI agents the power to issue subpoenas for any records or other tangible things (Sec. 128);
-- Allow the government to obtain telephone toll records, bank records and credit records without judicial approval in domestic terrorism cases (Sec. 129);
-- Allow wiretaps without a court order for up to 15 days following a terrorist attack (Sec. 103);
-- Terminate court-approved limits on local police spying on religious and political activity (Sec. 312);
-- Authorize secret arrests in terrorism cases (Sec. 201);
-- Expand the implications of the definition of domestic terrorism so that it is a predicate for wiretapping (Sec. 122) and civil asset forfeiture (Secs. 427, 428);
-- Expand the government's power to strip people of their U.S. citizenship (sec. 501);
-- Make it a crime to encrypt any communication related to a federal felony, even without intent to conceal (Sec. 404);
-- Further curtail rights of even lawful immigrants to a fair deportation hearing and further limits federal court review of immigration decisions (Secs. 503, 504).

Dempsey underscored the concern lawmakers have about PATRIOT II advancing in Congress.

"We need to find a way to get more public information out there about this, so that when the sunset (for PATRIOT I) comes around, and when PATRIOT II, if it ever comes, rolls around, that members of Congress and the public are better able to understand what powers the government has and if it is using those powers well," Dempsey said.

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