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Editorial: Upping the ante / Congress must scrutinize the 'Son of Patriot Act'

Thursday, February 20, 2003

Democrats in Congress are accusing the Justice Department of incubating an assault on civil liberties in the form of follow-up legislation to the USA Patriot Act. That was the post-Sept. 11 law in which Congress loosened restrictions on intelligence-gathering -- though not to the extent originally sought by Attorney General John Ashcroft.

Are the Democrats right? Some of the provisions in the draft Domestic Security Enhancement Act of 2003 leaked to a Washington public interest group should never see the light of enactment. Others actually would provide protections against government overreaching. Still others need much more justification than the draft document provides.

A complaint by Democratic Sen. Pat Leahy of Vermont that the drafting of the proposals was "shrouded in secrecy" is beside the point. The shroud would have had to be removed from the proposal at some point. What matters is how Congress responds.

Some elements of the draft legislation clearly go too far. One of them is a blanket ban on the use of the Freedom of Information Act to obtain information about suspected terrorists detained by federal authorities. One can imagine circumstances in which identifying a detainee would compromise the frustration of an ongoing terrorist plot. But rather than deal with those cases on their merits, the draft would provide the Justice Department with blanket authority to keep all such information secret.

Another troubling provision would allow U.S. citizenship to be stripped from people who provide "material support" to organizations regarded by the government as terroristic. Given the fact that the Bush administration already insists on the right to classify U.S. citizens as "enemy combatants" lacking due process rights, the rationale for this provision is obscure. But no one should lose U.S. citizenship without exceptional proof.

Congress also should be skeptical about two related proposals that would broaden the definition of terrorism to include information-gathering by agents of a "foreign power" that in itself was not illegal while redefining "agent of a foreign power" to include terrorists acting alone. Granted, after Sept. 11 it is naive to pretend that all terrorism by foreigners will be the result of some foreign government's directive. Even so, the net cast by these provisions seemingly could take in foreigners whose only terrorist activity was to read the newspaper or watch television.

Other provisions, while they shouldn't be rejected out of hand, deserve more discussion.

The proposal would allow officials other than the attorney general to authorize the use of intelligence data in a criminal prosecution. Is this really necessary to bring terrorists to justice -- or would it make it easier for prosecutors to use terrorism as an excuse to gather evidence without probable cause?

Another proposal that the government maintain a DNA database of "suspected terrorists" may be defensible, provided the information is not used for other purposes, such as in ordinary criminal investigations.

The draft legislation does contain some good ideas, including authority for the federal government to conduct autopsies on the bodies of the victims of terrorism and a nullification of consent decrees that prevent state and local police from observing political and other meetings "on the same terms and conditions as members of the public."

A few provisions actually hold the government to a higher standard in intelligence-gathering. For example, the draft would allow for the appointment of a lawyer to defend a special intelligence court when the Justice Department appealed that court's refusal to authorize electronic surveillance.

In sum, the draft "Son of Patriot Act" is a very mixed bag, a starting point for the same searching congressional scrutiny that wrought changes in its "father" legislation.

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