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Patriot Act's Big Brother | The Nation

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Patriot Act's Big Brother

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In early February, the Center for Public Integrity disclosed a leaked draft of the Bush Administration's next round in the war on terrorism--the Domestic Security Enhancement Act (DSEA). The draft legislation, stamped Confidential and dated January 9, 2003, appears to be in final form but has not yet been introduced in Congress. Presumably the Administration had determined that the timing would be more propitious for passage--meaning less propitious for reasoned debate--after we go to war with Iraq. But it is one thing to play politics with the timing of a farm bill; it is another matter to do so with a bill that would radically alter our rights and freedoms.

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David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

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If the Patriot Act was so named to imply that those who question its sweeping new powers of surveillance, detention and prosecution are traitors, the DSEA takes that theme one giant step further. It provides that any citizen, even native-born, who supports even the lawful activities of an organization the executive branch deems "terrorist" is presumptively stripped of his or her citizenship. To date, the "war on terrorism" has largely been directed at noncitizens, especially Arabs and Muslims. But the DSEA would actually turn citizens associated with "terrorist" groups into aliens.

They would then be subject to the deportation power, which the DSEA would expand to give the Attorney General the authority to deport any noncitizen whose presence he deems a threat to our "national defense, foreign policy or economic interests." One federal court of appeals has already ruled that this standard is not susceptible to judicial review. So this provision would give the Attorney General unreviewable authority to deport any noncitizen he chooses, with no need to prove that the person has engaged in any criminal or harmful conduct.

A US citizen stripped of his citizenship and ordered deported would presumably have nowhere to go. But another provision authorizes the Attorney General to deport persons "to any country or region regardless of whether the country or region has a government." And failing deportation to Somalia (or a similar place), the Justice Department has issued a regulation empowering it to detain indefinitely suspected terrorists who are ordered deported but cannot be removed because they are stateless or their country of origin refuses to take them back.

Other provisions are designed to further insulate the war on terrorism from public and judicial scrutiny. The bill would authorize secret arrests, a practice common in totalitarian regimes but never before authorized in the United States. It would terminate court orders barring illegal police spying entered before September 11, 2001, without regard to the need for judicial supervision. It would allow secret government wiretaps and searches without even a warrant from the supersecret Foreign Intelligence Surveillance Court when Congress has authorized the use of force. And it would give the government the same access to credit reports as private companies, without judicial supervision. Historically, we have imposed a higher threshold, and judicial oversight, on government access to such private information, because government has the motive and the wherewithal to abuse the information in ways private companies generally do not.

But the trajectory of the war on terrorism is probably best illustrated by an obscure provision that would eliminate the distinction between domestic terrorism and international terrorism for a host of investigatory purposes. The Administration's argument sounds reasonable enough--terrorism is terrorism, whether it's within the United States or has an international component. But in the Patriot Act debates, the Administration argued that it should be afforded broader surveillance powers over "international terrorism" because such acts are simultaneously a matter of domestic law enforcement and foreign intelligence. Because foreign intelligence gathering has traditionally been subject to looser standards than criminal law enforcement, the government argued, the looser standards should extend to domestic investigations of "international terrorism." But now it proposes to extend the same loose standards to investigations of wholly domestic crimes.

The DSEA's treatment of expatriation and domestic terrorism are harbingers of things to come. Thus far, much of the war on terrorism has been targeted at foreign nationals and sold to the American people on that ground. Americans' rights are not at stake, the argument goes, because we're concerned with "international" crime committed mostly by "aliens." With the DSEA, however, the Administration seeks to transgress both the alien-citizen line, by turning citizens into aliens for their political ties, and the domestic-international line, extending to wholly domestic criminal-law-enforcement tools that were previously reserved for international terrorism investigations.

How will Congress respond? Thus far, when citizens' rights have been directly threatened, Congress has taken civil liberties seriously. Most recently, it blocked the Pentagon's Total Information Awareness data-mining program. But it blocked it only as applied to US citizens. As long as the Pentagon violates only foreign nationals' privacy, Congress in effect said, Go ahead. But that tactic--protecting citizens' rights while ignoring those of foreign nationals--is untenable, not only on moral grounds but because if the Administration gets its way, we are all potentially "aliens."

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