Tuesday, March 09, 2004

"Stealth enactment" of Patriot Act II 

This isn't a new story, but there are several reasons I'm bringing it up again. First, it never really got the attention it deserved. The mainstream media completely ignored it, although some blogs picked it up. Second, there seems to be a lot of confusion about exactly what legislation was passed, and I want to set the story straight. Finally, there is evidence that this was not an isolated incident but rather the first instance of a general strategy of sneaking Patriot II provisions bit by bit into other bills, and I want to alert readers as to what to expect next.

What is Patriot II? Officially called the Domestic Security Enhancement Act of 2003, it's a draft bill that the Department of Justice was working on before an anonymous staffer leaked it to the press last year. The act dramatically expands search and wiretap privileges for law enforcement, including searches conducted entirely without a warrant; gives the federal government the ability to create a database of American citizens' DNA; makes it a crime to refuse to hand over documents to the federal government; allows for secret arrests in terrorism cases, even in the absence of criminal charges; and suspends the right of habeas corpus review for any alien, even a lawful permanent resident, convicted of even a minor crime. Perhaps most troubling is a provision stating that American citizens can, though their actions, "implicitly renounce" their citizenship, permitting them to be "indefinitely imprisoned in their own country as undocumented aliens."

When the draft of Patriot II was leaked to the press last February, it naturally caused an uproar, and the bill was shelved. Or so we thought. In July, Ashcroft and crew came out with something called the Victory Act, which repackaged portions of Patriot II under the guise of fighting "narcoterrorism." Again, public outcry quashed the bill.

Last November, libertarian congressman Ron Paul (R-TX) cryptically warned: "It appears we are witnessing a stealth enactment of the enormously unpopular 'PATRIOT II' legislation." This vague and alarming statement was met mostly with silence; where it was noticed, it was met with confusion. So what actually happened?

Congress did not pass the entire Patriot Act II or even a substantial part of it. What it passed was something called the Intelligence Authorization Act of 2004, a routine spending bill which included one Patriot Act II provision as a rider. The text of this provision reads:
For purposes of this section, and sections 1115 and 1117 insofar as they relate to the operation of this section, the term `financial institution' has the same meaning as in subsections (a)(2) and (c)(1) of section 5312 of title 31.
Doesn't look too menacing, does it? What it does is modify a provision of the original Patriot Act which required that banks release financial records to the FBI on demand. By broadening the definition of "financial institution" in the original Patriot Act, the new provision compels insurance agencies, hotels, car dealerships, travel agencies and many other businesses--even eBay--to release records to the FBI on demand, without a warrant or any sort of judicial oversight. The FBI need only issue a letter, which is never reviewed by a court or judge, saying that our national security is at stake. George Paine at Warblogging writes:
Intelligence spending bills are considered "sensitive" and so are usually written in complete secrecy and voted on "without debate or public comment." This makes them ideal for passing controversial legislation that otherwise would never reach the President's desk.
Indeed. And in an obvious effort to avoid media attention, the president signed the bill on the same day, December 13, 2003, that Saddam was captured in Iraq.

It's not over yet, either. According to Caroline Palmer of the National Lawyers Guild, "what was Patriot Act II has been broken into smaller pieces of legislation and sprinkled into Homeland Security and other bills." Ari Schwartz of the Center for Democracy and Technology adds:
Implementing Patriot Act II step-by-step seems to be the plan - unless there's another terrorist attack, in which case they'd go for the whole thing.
In other words, we've only seen the "test case for the Bush Administration's strategy of implementing an unpopular and dangerous slate of policies incrementally, below the radar screen."

In an election year, the administration may put its more extreme attacks on civil liberties on hold. Even so, this article claims the Victory Act is likely to be back in congress this year. We need to be vigilant and on the alert for further "stealth enactments" of Patriot II. By focusing attention on this administration's assault on civil liberties, we can help create a winning issue for the democrats in this election. There is an enormous amount of work to be done: in a recent poll, despite voters' preference for Kerry over Bush on eight of twelve issues including the economy, health care and education, Kerry and Bush are tied when it comes to civil liberties. A full 61% of voters approve of the way Bush has handled civil liberties. That number should be far, far lower. We have our work cut out for us.

links: full text of Patriot II, and a summary from the ACLU.

UPDATE: (via TalkLeft) According to this article, we should be even more concerned about the Bush administration's assault on "threshold rights," the right to know what the government is doing, than with the Patriot Act's assault on civil liberties. I think this may be a false dichotomy--the Patriot Act does a lot to promote government secrecy and restrict "threshold rights"--but the article is well worth reading.
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