Summary:
In January of 2003 a draft was leaked of a bold, comprehensive sequel to the USA Patriot Act which would give the government broad, sweeping new powers to increase domestic intelligence-gathering, surveillance and law enforcement prerogatives, and simultaneously decrease judicial review and public access to information.

The bill, drafted by the staff of Attorney General John Ashcroft and entitled the Domestic Security Enhancement Act of 2003, has not been officially released by the Department of Justice, although rumors of its development circulated around the Capitol for the months before the leak under the name of "the Patriot Act II" in legislative parlance. The Center for Public Integrity obtained a draft, dated January 9, 2003, of this previously undisclosed legislation and is making it available on their website.

Details:

Sections 101, 102 and 107 make it easier for the government to initiate surveillance and wiretapping of U.S. citizens under the authority of the shadowy, top-secret Foreign Intelligence Surveillance Court. [ACLU]

Sections 103 and 104 permit the government, under certain circumstances, to bypass the Foreign Intelligence Surveillance Court altogether and conduct warrantless wiretaps and searches. [ACLU]

Section 106 shelters federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials. [ACLU]

Section 121, adds a definition of "terrorist activities" to the criminal code governing electronic surveillance. In addition to an established definition for criminal acts of domestic and international terrorism the definition would include "related preparatory, material support and criminal activities." The inclusion of preparatory activities could be interpreted broadly to include research and information gathering. [OMBW] In addition, the overbroad definition of terrorism could cover some protest tactics such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico as a new predicate for criminal wiretapping and other electronic surveillance. [ACLU]

Section 122 creates a new category of "domestic security surveillance" that permits electronic eavesdropping of entirely domestic activity under looser standards than are provided for ordinary criminal surveillance under Title III. [ACLU]

Section 404 creates a new, separate crime of using encryption technology that could add five years to any sentence for crimes committed with a computer. [ACLU]

Section 125 expands nationwide search warrants so they do not have to meet even the broad definition of terrorism in the USA PATRIOT Act. [ACLU]

Section 126 gives the government secret access to credit reports without consent and without judicial process. [ACLU]

Sections 128 and 129 enhance the government's ability to obtain sensitive information without prior judicial approval by creating administrative subpoenas and providing new penalties for failure to comply with written demands for records. [ACLU]

Sections 301-306 authorize creation of a DNA database of "suspected terrorists", expansively defined to include association with suspected terrorist groups, and noncitizens suspected of certain crimes or of having supported any group designated as terrorist. [CFPI]. It allows for the sampling and cataloguing of innocent Americans' genetic information without court order and without consent. [ACLU]

Section 311 permits, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement. [ACLU]

Section 312 terminates state law enforcement consent decrees before Sept. 11, 2001 that limit such agencies from gathering information about individuals and organizations. It would also place substantial restrictions on future court injunctions. [CFPI]

Sections 321 and 322 permit searches, wiretaps and surveillance of United States citizens on behalf of foreign governments in the absence of Senate-approved treaties. [ACLU]

Section 201 authorizes secret arrests in immigration and other cases, such as material witness warrants, where the detained person is not criminally charged. [ACLU] Also, it enhances the ability of the FOIA department [Freedom of Information Act] to deny release of material on suspected terrorists in government custody. [CFPI]

Section 204 harms fair trial rights for American citizens and other defendants by limiting defense attorneys from challenging the use of secret evidence in criminal cases. [ACLU]

Section 206 gags grand jury witnesses in terrorism cases to bar them from discussing their testimony with the media or the general public, thus preventing them from defending themselves against rumor-mongering and denying the public information it has a right to receive under the First Amendment. [ACLU]

Section 313 grants prosecution immunity to businesses that provide information to the government in terrorism investigations, even if their actions are taken with disregard for their customers' privacy or other rights and show reckless disregard for the truth. [ACLU]

Section 501 establishes that an American citizen could be expatriated "if, with the intent to relinquish his nationality, he becomes a member of, or provides material support to, a group that the United Stated has designated as a 'terrorist organization'." But whereas a citizen formerly had to state his intent to relinquish his citizenship, the new law affirms that his intent can be "inferred from conduct." Thus, engaging in the lawful activities of a group designated as a "terrorist organization" by the Attorney General could be presumptive grounds for expatriation. [CFPI] Americans could be stripped of citizenship even if they support only the lawful activities of such organizations, allowing them to be indefinitely imprisoned in their own country as undocumented aliens. [ACLU]

Section 411 creates fifteen new death penalties, including a new death penalty for "terrorism" under a definition which could cover acts of protest such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico, if death results. [ACLU]

Section 402 further criminalizes association - without any intent to commit specific terrorism crimes - by broadening the crime of providing material support to terrorism, even if support is not given to any organization listed as a terrorist organization by the government. [ACLU]

Section 322 permits arrests and extraditions of Americans to any foreign country - including those whose governments do not respect the rule of law or human rights - in the absence of a Senate-approved treaty and without allowing an American judge to consider the extraditing country's legal system or human rights record. [ACLU]

Section 503 provides for summary deportations without evidence of crime, criminal intent or terrorism, even of lawful permanent residents, whom the Attorney General says are a threat to national security. [ACLU]

Section 504 completely abolishes fair hearings for lawful permanent residents convicted of even minor criminal offenses through a retroactive "expedited removal" procedure, and prevents any court from questioning the government's unlawful actions by explicitly exempting these cases from habeas corpus review. Congress has not exempted any person from habeas corpus - a protection guaranteed by the Constitution - since the Civil War. [ACLU]

Section 506 allows the Attorney General to deport an immigrant to any country in the world, even if there is no effective government in such a country. [ACLU]

Sources:
The Center For Public Integrity - Special report [CFPI]
ACLU - Section by section analysis [ACLU]
OMB Watch - Analysis highlights [OMBW]

Further Info:
Electronic Privacy Information Center - Links to more info