Justice Department Drafts Expanded PATRIOT Act

A nonprofit organization recently disseminated draft legislation leaked from the Department of Justice that would expand the USA PATRIOT Act (Pub. L. No. 107–56). This draft has not yet been introduced as legislation.

This proposal, entitled the Domestic Security Enhancement Act of 2003 (also dubbed Patriot II), would grant government authorities unprecedented enforcement and intelligence-gathering powers. It would authorize secret arrests, reduce or eliminate judicial oversight over surveillance, create a DNA database based on unchecked executive “suspicion,” and create new death penalty offenses.  There is even a provision, Section 501, that would take American citizenship away from a person who belongs to, or supports, groups that the U.S. has designated as “terrorist organizations,” thus potentially consigning them to indefinite imprisonment as undocumented aliens in their native country.  The draft provision would accomplish this by “inferring” intent to relinquish citizenship from the individual’s conduct.  Such conduct could even include activities that currently are considered legal.

The draft also includes immigration provisions that unfairly target immigrants under the pretext of fighting terrorism.  Section 503 would eliminate due process entirely by allowing summary deportations without evidence of crime, criminal intent or terrorism for those immigrants (including lawful permanent residents) whom the Attorney General determines are a threat to national security. More specifically, this section would grant the AG this authority when he determines that the presence of these individuals is inconsistent with U.S. “national security.”  “National security” is defined as the “national defense,” “foreign relations,” and “economic interests” of the United States.  Based on case law, the authority of the Attorney General to make national security determinations is unreviewable.

Section 504 would create a retroactive “expedited removal” procedure that would abolish fair hearings for lawful permanent residents and prevent any court from reviewing the government’s actions by explicitly exempting these cases from habeas corpus review. More specifically, this section changes the title of INA § 238 to read “Expedited Removal of Criminal Aliens” from the current language, “Expedited Removal of Aliens Convicted of Committing Aggravated Felonies.”  This dramatic expansion of the expedited removal process will affect even those long-time permanent residents who are potentially eligible for naturalization.  Section 504 also amends INA § 238(b) by allowing the Attorney General, using a limited paper review and without hearing, to order the removal of an individual convicted of a covered offense.  This removal can take place without regard to the severity of the crime, when it was committed, or what negative impact the removal would have on U.S. citizen family members.  This section would disregard the Supreme Court’s ruling in St. Cyr by stripping the judiciary of its core functions in such cases.

Additionally, this draft includes other provisions that would: expand the Attorney General’s authority to designate a country to which an immigrant could be deported, and permitting such deportation even if there is no effective government in that country (Section 506); and permit the sharing of personal information (such as credit card information and educational records) without any connection to anti-terrorism efforts, with local and state law enforcement (Section 311).