I guess this seems a couple of weeks late, but as one of my dearest sources pointed out regarding the leaked draft of Justice's proposed "Domestic Security Enhancement Act of 2003" — great God, it is huge!
It's not just the length of the document, either, but also its awesome scope, and, some say, its audacity.
We've known for months that Assistant Attorney General Viet Dinh, head of the Office of Legal Policy, had been drafting a wish list of new changes to various laws to "tweak" the USA Patriot Act, which was passed in a hurry in the wake of the 9/11 attacks.
And certainly the copy nicely obtained and published by the Center for Public Integrity is stamped "draft." But as one Hill staffer pointed out, this was "clearly not an unpolished product." With its themes and titles, it seems to have been in the works for a very long time.
This Democratic staffer was annoyed that whenever his office had called Justice and asked about the rumors that a draft "Patriot Act II" was in the works, the answer was always "no" — even right up to the moment that the center published the "draft." The staffer noted that the most cynical view of the proposal is that it was a "draft waiting on a war."
He cited The Washington Post editorial as having mentioned two or three changes that are reasonable "and about 37 that are not," but complained there is no balance; you cannot say on-the-one-hand-this but on-the-other-hand-that: "this is not an ambidextrous proposal!"
The staffer cited what he considered to be several overarching themes to the lengthy draft. I am also including below my own comments on certain provisions that particularly struck me; this is by no means an exhaustive analysis, but I hope it's a little more insight than some of the immediate reactions you may have seen.
Expansion of Title III Wiretaps: This is significant, the staffer maintained, as it marks a sea change from Justice's position of the recent past, in which it concentrated on needed changes to the Foreign Intelligence Surveillance Act (FISA), which authorizes national security wiretaps.
Title III wiretaps are those OK'd by federal judges in federal criminal investigations; such warrants have in the past required a greater amount of oversight and scrutiny than FISA orders that are mainly focused on foreigners. But one of the new provisions would carve out a terrorism exception to Title III, requiring little or no court supervision in such criminal cases.
The warrant's duration would be upped from 30 to 90 days, and the necessity of filing 10-day reports, hated by agents, would be removed. The required notification to the target could be delayed even more easily than it is now.
This development, frankly, surprised me, as I could vividly recall the words of the senior Justice official who briefed us on the attorney general's new FISA guidelines, ultimately upheld by the FISA Court of Review.
This official, several times, had pointed out that there was no need for civil libertarians to become alarmed, because the law still only applied to foreign agents and terrorists; this was not aimed at Al Capone or even Tim McVeigh, he would say, adding that "no red-blooded American criminal needed to fear" its impact. And yet here they are, barely a year later, seeking to change the law so that it indeed could have an impact on such red-blooded crooks.