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Justice Dept. drafts vast
expansion of PATRIOT Act

By Charles Lewis and Adam Mayle

Washington, DC, Feb. 7-- The Bush Administration is preparing a bold, comprehensive sequel to the USA PATRIOT Act passed in the wake of Sept. 11, 2001, which will 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 Center for Public Integrity (CPI) has obtained a draft, dated Jan. 9, 2003, of this previously undisclosed legislation and is making it available in full text. 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 have circulated around the Capitol for the last few months under the name of "the PATRIOT Act II" in legislative parlance.

"We haven’t heard anything from the Justice Department on updating the PATRIOT Act," House Judiciary Committee spokesman Jeff Lungren told CPI. "They haven’t shared their thoughts on that. Obviously, we’d be interested, but we haven’t heard anything at this point."

Senior members of the Senate Judiciary Committee minority staff have inquired about PATRIOT II for months and have been told as recently as this week that there is no such legislation being planned.

Mark Corallo, deputy director of Justice’s Office of Public Affairs, told CPI that his office was unaware of the draft. "I have heard people talking about revising the PATRIOT Act, we are looking to work on things the way we would do with any law," he said. "We may work to make modifications to protect Americans," he added. When told that CPI had a copy of the draft legislation, he said, "This is all news to me. I have never heard of this."

After CPI posted this story, Barbara Comstock, director of public affairs for the Justice Dept., released a statement saying that, "Department staff have not presented any final proposals to either the Attorney General or the White House. It would be premature to speculate on any future decisions, particularly ideas or proposals that are still being discussed at staff levels."

An Office of Legislative Affairs "control sheet" that was obtained by the PBS program Now With Bill Moyers seems to indicate that a copy of the bill was sent to Speaker of the House Dennis Hastert and Vice President Richard Cheney on Jan. 10, 2003. "Attached for your review and comment is a draft legislative proposal entitled the ‘Domestic Security Enhancement Act of 2003,’" says the memo, sent from the Office of Legal Policy.

Comstock later told CPI that the draft "is an early discussion draft and it has not been sent to either the Vice President or the Speaker of the House."

Dr. David Cole, Georgetown University Law professor and author of Terrorism and the Constitution, reviewed the draft legislation at the request of the Center, and said that the legislation "raises a lot of serious concerns. It’s troubling that they have gotten this far along and they’ve been telling people there is nothing in the works." This proposed law, he added, "would radically expand law enforcement and intelligence gathering authorities, reduce or eliminate judicial oversight over surveillance, authorize secret arrests, create a DNA database based on unchecked executive ‘suspicion,’ create new death penalties, and even seek to take American citizenship away from persons who belong to or support disfavored political groups."

Some of the key provisions of the Domestic Security Enhancement Act of 2003 include:

u Section 201, "Prohibition of Disclosure of Terrorism Investigation Detainee Information": Safeguarding the dissemination of information related to national security has been a hallmark of Ashcroft’s first two years in office, and the Domestic Security Enhancement Act of 2003 follows in the footsteps of his October 2001 directive to carefully consider such interest when granting Freedom of Information Act (FOIA) requests. While the October memo simply encouraged FOIA officers to take national security, "protecting sensitive business information and, not least, preserving personal privacy" into account while deciding on requests, the proposed legislation would enhance the department’s ability to deny releasing material on suspected terrorists in government custody through FOIA.

u Section 202, "Distribution of ‘Worst Case Scenario’ Information": This would introduce new FOIA restrictions with regard to the Environmental Protection Agency (EPA). As provided for in the Clean Air Act, the EPA requires private companies that use potentially dangerous chemicals to produce a "worst case scenario" report detailing the effect that the release of these controlled substances would have on the surrounding community. Section 202 of this Act would, however, restrict FOIA requests to obtain these reports, which the bill’s drafters refer to as "a roadmap for terrorists." By reducing public access to "read-only" methods for only those persons "who live and work in the geographical area likely to be affected by a worst-case scenario," this subtitle would obfuscate an established level of transparency between private industry and the public.

u Section 301-306, "Terrorist Identification Database": These sections would authorize creation of a DNA database on "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.

u Section 312, "Appropriate Remedies with Respect to Law Enforcement Surveillance Activities": This section would terminate all state law enforcement consent decrees before Sept. 11, 2001, not related to racial profiling or other civil rights violations, that limit such agencies from gathering information about individuals and organizations. The authors of this statute claim that these consent orders, which were passed as a result of police spying abuses, could impede current terrorism investigations. It would also place substantial restrictions on future court injunctions.

u Section 405, "Presumption for Pretrial Detention in Cases Involving Terrorism": While many people charged with drug offenses punishable by prison terms of 10 years or more are held before their trial without bail, this provision would create a comparable statute for those suspected of terrorist activity. The reasons for presumptively holding suspected terrorists before trial, the Justice Department summary memo states, are clear. "This presumption is warranted because of the unparalleled magnitude of the danger to the United States and its people posed by acts of terrorism, and because terrorism is typically engaged in by groups -- many with international connections -- that are often in a position to help their members flee or go into hiding."

u Section 501, "Expatriation of Terrorists": This provision, the drafters say, would establish that an American citizen could be expatriated "if, with the intent to of, or provides material support to, a group that the United States 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.

The Domestic Security Enhancement Act is the latest development in an 18-month trend in which the Bush administration has sought expanded powers and responsibilities for law enforcement bodies.

The USA PATRIOT Act, signed into law by President Bush on Oct. 26, 2001, gave law enforcement officials broader authority to conduct electronic surveillance and wiretaps, and gives the president the authority, when the nation is under attack, to confiscate any property within US jurisdiction of anyone believed to be engaging in such attacks. The measure also tightened oversight of financial activities to prevent money laundering and diminish bank secrecy in an effort to disrupt terrorist finances.

It also changed provisions of the Foreign Intelligence Surveillance Act (FISA), which was passed in 1978 during the Cold War. FISA established a different standard of government oversight and judicial review for "foreign intelligence" surveillance than that applied to traditional domestic law enforcement surveillance.

The USA PATRIOT Act allowed the Federal Bureau of Investigation to share information gathered in terrorism investigations under the "foreign intelligence" standard with local law enforcement agencies, in essence nullifying the higher standard of oversight that applied to domestic investigations. The USA PATRIOT Act also amended FISA to permit surveillance under the less rigorous standard whenever "foreign intelligence" was a "significant purpose" rather than the "primary purpose" of an investigation.

The draft legislation goes further in that direction. "In the [USA PATRIOT Act] we have to break down the wall of foreign intelligence and law enforcement," Cole said. "Now they want to break down the wall between international terrorism and domestic terrorism."

In an Oct. 9, 2002, hearing of the Senate Judiciary Subcommittee on Technology, Terrorism, and Government Information, Deputy Assistant Attorney General Alice Fisher testified that the Justice Dept. had been, "looking at potential proposals on following up on the PATRIOT Act for new tools and we have also been working with different agencies within the government and they are still studying that and hopefully we will continue to work with this committee in the future on new tools that we believe are necessary in the war on terrorism."

Asked by Sen. Russ Feingold (D-Wis.) whether she could inform the committee of what specific areas the Justice Dept. was looking at, Fisher replied, "At this point I can’t, I’m sorry. They’re studying a lot of different ideas and a lot of different tools that follow up on information sharing and other aspects."

Assistant Attorney General for Legal Policy Viet Dinh, who was the principal author of the first PATRIOT Act, told Legal Times last October that there was "an ongoing process to continue evaluating and re-evaluating authorities we have with respect to counter-terrorism," but declined to say whether a new bill was forthcoming.

Former FBI Director William Sessions, who urged caution while Congress considered the USA PATRIOT Act, did not want to enter the fray concerning a possible successor bill.

"I hate to jump into it, because it's a very delicate thing," Sessions told CPI, without acknowledging whether he knew of any proposed additions or revisions to the additional PATRIOT bill.

When the first bill was nearing passage in the Congress in late 2001, however, Sessions told Internet site NewsMax.com that the balance between civil liberties and sufficient intelligence gathering was a difficult one. "First of all, the Attorney General has to justify fully what he’s asking for," Sessions, who served presidents Reagan and George H.W. Bush as FBI Director from 1987 until 1993, said at the time. "We need to be sure that we provide an effective means to deal with criminality." At the same time, he said, "we need to be sure that we are mindful of the Constitution, mindful of privacy considerations, but also meet the technological needs we have" to gather intelligence.

Cole found it disturbing that there have been no consultations with Congress on the draft legislation. "It raises a lot of serious concerns and is troubling as a generic matter that they have gotten this far along and tell people that there is nothing in the works. What that suggests is that they’re waiting for a propitious time to introduce it, which might well be when a war is begun. At that time there would be less opportunity for discussion and they’ll have a much stronger hand in saying that they need these right away."

Source: Center for Public Integrity

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British pro-war dossier plagiarized

Compiled by Nicholas Holt

Feb. 12 (AGR)-- Ten Downing Street (home and offices of the British prime minister) apologized last week after it was revealed that much of its latest dossier on Iraq was plagiarized from academic sources and cobbled together by mid-level communications department staff with only cursory approval from intelligence or Foreign Office sources.

The 15-page document, "Iraq: Its Infrastructure of Concealment, Deception, and Intimidation" was praised by US Secretary of State Colin Powell in his Jan. 4 speech to the United Nations (UN) for its "exquisite detail" and as "a fine paper."

Most of the document was copied word-for-word, including grammar errors, from an article by Iraqi-American Ibrahim al-Marishi in the September edition of Middle East Review of International Affairs. He, in turn, sourced his information to a 1999 book by former UN weapons inspector Scott Ritter, who opposes the drive by the Bush administration for war on Iraq.

Al-Marishi’s words were changed to exaggerate their meaning: "monitoring" became "spying," and "opposition groups" were transformed into "terrorist organizations."

Other portions were lifted from articles written in 1997 by Sean Boyne of Jane’s Intelligence Review and Saddam’s Secrets, a 1999 book by Tim Trevan.

At one point, in combining al-Marashi’s work with Boyne’s, the report confuses two organizations and both authors said their figures had been altered in the government document.

"I don’t like to think that anything I wrote has been used for an argument for war," said Boyne. "I am concerned because I am against the war."

"This is wholesale deception," said al-Marashi. "How can the British public trust the government if it is up to those sorts of tricks? People will treat any other information they publish with a lot of skepticism from now on."

Prime Minister Tony Blair’s efforts to sell the case for war has created a tension within MI6 (the British foreign intelligence agency) that has mirrored that between the White House and Pentagon civilian staff and the Central Intelligence Agency, Defense Intelligence Agency, and the Federal Bureau of Investigation.

For months British intelligence officers, like their counterparts in the US have been insisting that there is no hard evidence of a link between Iraqi leader Saddam Hussein and al-Qaida, while the Blair administration, like Bush’s, insists the opposite.

A spokesman for the US State Department said Powell had been made aware of the reports of the documents origins.

"The British report contained good information," the spokesman said. "We’ll leave it to them about how it was put together."

Even before the latest row, some Whitehall officials were protesting that M16 and other intelligence material was being used selectively by Downing Street. A well-placed source made it clear that the dossier was the work of Downing Street and the Coalition Information Center, the body set up after Sept. 11, 2001 to push the US-British "war on terror."

The Prime Minister’s spokesman accepted that it may have been wiser to properly source the material used in the report and said an internet version might be amended to acknowledge its origins.

"It was a pull-together of a variety of sources. In retrospect, we should, to clear up any confusion, have acknowledged which bits came from public sources and which bits came from other sources," he said.

Glenda Jackson, the Labor former minister, was one of several Ministers of Parliament to protest that the government was misleading Parliament and the public. "And of course," she said, "to mislead is a parliamentary euphemism for lying."

Sources: Guardian, Mirror, Observer, Times

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Split decision in Asheville
‘driving while black’ case

By Shawn Gaynor

Asheville, North Carolina, Feb. 5 (AGR)—The trial involving two Asheville residents who say they were wrongfully targeted by police, and assaulted for "driving while black," ended today as a district court judge handed down a split decision.

The incident occurred on July 21, 2002, on Blanton Street on the front lawn of Ishmael Hassan.

Following the incident Hassan was charged with running a red light, assaulting a government official, and resist/delay/obstruct. Khalid Saadiq, who was with Hassan, was also arrested during the incident and charged with using provocative language, and resist/delay/obstruct.

The judge cleared Saadiq, a licensed police officer who had served over six years on the Asheville Police Department (APD) with a flawless record, of all charges. However, the judge delivered a guilty verdict on two of the charges against Hassan -- running a red light and resisting arrest.

The red light incident is one of several points of strong contention between the defense and the prosecution. The officers involved maintain that the incident developed out of Hassan’s failure to stop for a red light on Coxe Ave.; however, Hassan, a Youth Corrections officer at the Swannanoa Youth Detention Center, testified he was never driving on Coxe Ave. and that his route home, where the incident unfolded, does not take him down Coxe Ave.

According to Hassan’s testimony he was driving home from his place of worship with his son and his friend Saadiq. They had just parked outside of Hassan’s house and were on the front lawn when two APD officers, Brent Maltby and Josh Breneman, stopped and told them to get back in the car.

Given that no other witnesses could be provided by either defense or prosecution for the red light on Coxe Ave., the judge had to weigh the testimonies and decide who to believe. Despite Hassan and Saadiq both being employed in law enforcement, and the rookie status of the two arresting officers, the judge sided with the prosecution, finding no reasonable doubt in what would appear an even battle of credibility between the two black defendants and the white arresting officers.

The officers also disputed that both men where out of the car when they arrived, testifying that that the driver, Hassan, exited the car after the stop, and that he was pepper sprayed after refusing to return to the car.

This is one of the many discrepancies between the testimony given by the officers and that of the defendants, the most glaring of which are the moments after Hassan had been pepper sprayed. Both the defense and prosecution agree that Hassan was squatting with his back to the officers. Officer Maltby testified that at this point Hassan turned and tackled him by the legs, and after getting on top of him, claims that Hassan grabbed for his "duty belt." Hassan contends that he was never on top of officer Maltby, and that he followed Maltby’s orders to lie prone on the ground. Hassan asserts that officer Maltby began hitting him when he was in the process of being handcuffed.

There was another witness to this part of the incident: Hassan’s mother. She testified that she first noticed what was happening outside from her living room window. Her son was squatting on the lawn facing the house, with officer Maltby behind him. She testified that by the time she got to the front door, just a few feet from the window, Hassan was prone on his stomach and officer Maltby was on top of him, hitting him. This would seem to suggest that there was not time for officer Maltby’s version of the story to play out.

Both the defense and the prosecution agreed that the use of force on the part of the officers developed out of the defendants questioning the officers’ orders to return to their car. The defense asserted that the men were within their rights to ask these questions, and that the officers should have responded at this point.

"What happened here doesn’t happen every night in Asheville, but it happens frequently; what doesn’t happen frequently is that the officers mess up and jump on an ex-Asheville police officer, and an employee of the state of North Carolina -- a few people who do have some credibility and can articulate what happened, and also are in the position to assert some rights," stated defense attorney Sean Devero in the closing augments of the case. "Finally we have two people who don’t consent, who say ‘Tell us why.’ It should be clear that both of these guys did what I wish my clients would do all the time. Ask in a reasonable voice, ‘Stop, wait a minute, why are you doing this? Why are you taking us into custody? Why are you ordering us into that car? Tell us why.’ The officers could have answered, but they didn’t, your honor."

Hassan contends that the officers were so quick to use force that they failed to even notice he was wearing his youth correction officer uniform, the same uniform that he appeared in during his trial. When questioned by the prosecutor about why he was wearing his uniform to the trial, Hassan responded, "They’re all wearing their uniforms… I got my ass beat in this uniform so my supervisor said ‘I understand’."

Though the red light charge was the most minor of the case, it is the only justification for the encounter, which occurred shortly thereafter on Hassan’s front lawn, where both police and the defendants agree that Hassan was pepper sprayed, and beaten, and arrested, and then taken to Mission Hospital for examination of injuries resulting from being beaten.

An even playing field?

"We see this everyday around the country, we see it here -- a circumstance where officers are unsure of their ability, there are problems and some sort of exchange occurs. The officers have the power not only to do what they do on the scene, but they also have the power of absolute control. They have the power of what to charge and who to charge. They have the power to come to court, and generally speaking … the world knows that police officers are going to be believed in the courtroom," stated Devero in the closing arguments of the case. "So during these encounters with the general public they are aware without any sort of real supervision or oversight they are going to be believed."

And that’s what this trial, and a great many trials, came down to: the credibility of the officers, which is assumed, and legally difficult to explore and debunk; and the credibility of the defendants, which the defense tries to build and the prosecution to tear away.

During the trial the prosecution was able to focus on Hassan’s record as a corrections officer, even though it was not of direct relevance to the case. Hassan was asked about his original application for employment at his Juvenile Justice Center job. He was asked about his conduct and record at that job. He was asked about his relation to his supervisor at that job. He was asked about his use of force during the course of his job. All of which was admissible despite its irrelevance to the case being presented, which concerned only the incident on July 21.

Prosecution: "Have you ever used excessive force with an inmate?"

Hassan: "No I haven’t."

Prosecution: "Isn’t it true you got a major infraction at JC [Swannaoa Juvenile Justice Center]?"

Hassan "No."

However, due to state law, the employee records of officers Maltby and Breneman were not admissible as evidence. There was no opportunity to reasonably examine if these officers had a history of racial discrimination, or excessive use of force. Though an internal investigation had been conducted over the incident (a standard procedure after a formal complaint) the investigation reportedly stalled when the APD was unable to get a copy of a video, taken by a neighbor, that shows part of the incident.

Why hasn’t the APD got a copy of the video? "They haven’t made anything easy for us so why make it easy for them," responded Hassan, who felt the APD receiving the video in advance could have had a negative effect on the trial surrounding his criminal charges. "It’s sad that in America, in the criminal justice system, you’re suppose to be innocent until proven guilty, but it always seems that when you’re a Black man, or Black men, then you’re guilty until you prove your own innocence," continued Saadiq.

Even if during the course of an internal investigation the APD officers were found to have been racially motivated in their stop, and to have used excessive force against the defendants, that information would not ever reach the public, because once again, state law surrounding the personnel files of public employees would protect the officers.

And who would decide if the force used in a case being internally investigated was justified or excessive? State law leaves it up to the chief of police to make that judgment, safely out of sight of the public that the APD is bound to protect and serve.

Hassan stands to lose his job as a corrections officer due to the verdict. The defense says it is considering an appeal of the decision.

Liz Allen contributed to this report.

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