Power grab II

March 07, 2003

ALMOST 18 months after terrorists took thousands of lives in New York and Washington, it still hasn't been shown that fewer restraints on domestic intelligence-gathering and law enforcement would have prevented the attacks. The more likely culprit was U.S. agencies' inability to pinpoint, connect and understand information on hand.

That didn't stop the Bush administration from rushing to push the USA Patriot Act, passed by Congress with little debate just weeks after Sept. 11, 2001. Initially billed as mostly minor tinkering to aid counterterrorism, it gave the government sweeping new powers to spy on U.S. citizens -- down to their book purchases and education records.

Now, as anticipated, the stage appears set for the Justice Department to seek more such powers via "Patriot II" -- perhaps timed to coincide with war in Iraq. Justice had been saying it had no such bill in the works, until the Center for Public Integrity released a leaked draft of the agency's "Domestic Security Enhancement Act of 2003."

This frightening 120 pages so further threatens Americans' fundamental constitutional protections that it's hard to know where to begin. Its many proposed changes to laws could directly affect virtually any U.S. citizen by:

Reducing or eliminating judicial oversight of wiretaps and other surveillance.

Giving the government easier access to many private records -- medical, financial, travel -- and the right to share them with state and local police agencies.

Allowing the creation of a genetic database on suspected terrorists without their consent or a court order.

Allowing more secret detentions of suspected terrorists with loopholes barring release of information about those held.

Terminating many state law enforcement court decrees ordered before 9/11, due to past police spying abuses.

Sheltering federal agents from prosecution for illegal surveillance, as long as it was ordered by high executive-branch officials.

Last but not least, stripping Americans of their citizenship -- and subjecting them to indefinite detention or deportation -- if they support, even lawfully, a group the Justice Department deems terrorist.

The Bush administration likely cannot show that these blows to the Constitution would make us safer. At the same time, it's been slow to make moves that would actually increase public security, such as increasing aid to police agencies in vulnerable areas, upgrading the FBI's outdated computers, and launching a rigorous investigation of how 9/11 could have been prevented -- an exercise just now beginning with a mere $3 million budget.

Stephen J. Schulhofer, a New York University law professor and prominent scholar on the tensions between civil liberties and security, likens this to "bait and switch," explaining: "We have the worst of both worlds. The government tries to project a message of vigor by doing things like Patriot II, but that actually distracts from things they're not doing that would have a big payoff."

As a nation, we have repeatedly faced this before -- the Japanese internments of World War II and persecution of civil-rights and anti-war leaders in the 1960s and 1970s come quickly to mind -- and soon after each constitutional breach we've usually rejected it thoroughly.

It would be tragic to go through an especially bad version of this cycle once more, particularly because Patriot II would do so little to make us safer from very real threats.

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