Domestic Security Enhancement Act of 2003

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The Domestic Security Enhancement Act of 2003, also known as The Patriot Act II, Son of Patriot, and various other similar names is draft legislation written by John Ashcroft's Department of Justice. The Center for Public Integrity obtained a copy of the draft, marked "confidential," on February 7, 2003, and posted it on its web site, along with commentary.

The draft version of the bill would greatly expand the powers of the United States government to unprecedented levels, while simultaneously eliminating or curtailing judicial review of these powers. Members of the United States Congress said they had not seen the drafts, though the documents obtained by the CPI indicated that House speaker Dennis Hastert and US Vice President Dick Cheney have received copies.

Some commentators speculated that Ashcroft did not actually believe that any of the measures outlined in the bill would be passed, but that he deliberately asked for such radical measures to preclude controversy when a trimmed down version is later introduced which contains somewhat less far-reaching plans. It has also been suggested that, had the text of the bill not been leaked, the administration would have delayed its deployment to co-incide with a future terrorist attack in an attempt to secure a wider basis for approval of its measures.

Provisions of the February 7th draft version included:

  • Removal of court-ordered prohibitions against police agencies spying on domestic groups.
  • The FBI would be granted powers to conduct searches and surveillance based on intelligence gathered in foreign countries, without first obtaining a court order.
  • Creation of a DNA database of suspected terrorists.
  • Prohibition of any public disclosure of the names of alleged terrorists, including those who have been arrested.
  • Exemptions from civil liability for people and businesses who voluntarily turn private information over to the government.
  • Criminalization of the use of encryption to conceal incriminating communications.
  • Automatic denial of bail for persons accused of terrorism-related crimes, reversing the ordinary common law burden of proof principle. All alleged terrorists would be required to demonstrate why they should be released on bail, rather than the government being required to demonstrate why they should be held.
  • Expansion of the list of crimes eligible for the death penalty.
  • The Environmental Protection Agency would be prevented from releasing "worst case scenario" information to the public about chemical plants.
  • United States citizens whom the government finds to be either members of, or providing material support to, terrorist groups could have their US citizenship revoked and be deported to foreign countries.

Some provisions of this act have been tacked onto other bills, such as the Senate Spending bill, and subsequently passed.

The ACLU has been a vocal opponent of the PATRIOT Act of 2001, the proposed (as of 2003) PATRIOT 2 Act, and associated legislation made in response to the threat of domestic terrorism, that it believes violates either the letter and/or the spirit of the U.S. Bill of Rights.

On January 31, 2006 the Center for Public Integrity published a story on its website which claimed that this proposed legislation undercut the Bush administration's legal rationale of its NSA wiretapping program. The story claimed that Section 103: Strengthening Wartime Authorities Under FISA appears to state an AUMF does not override §§ 1811, 1829 & 1844 of FISA. This appears to be very significant, as the legal rationale given by the current Attorney General relies upon the AUMF passed by the Congress of The United States in 2001. The AUMF is supposed to implicitly override FISA because of legal language FISA contains, "not withstanding any other law." The AUMF is supposed to be the "other law." Critics of the NSA program point out the AUMF does not contain any language in reference to FISA and therefore must not override it. They also note that if the "other law" language in FISA does not overide the sections to be amended, then it must not in all of the others, including the sections which require a court order for a wiretap.

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