PART I

Making the rounds of Internet civil liberties and progressive group web sites in early February was information about a proposed new federal statute under consideration by the Department of Justice. This statute would go beyond even the constitutionally suspect USA PATRIOT Act, an extensive bill of 150 sections and ten Titles passed by Congress and signed by President Bush a mere 45 days from the moment of the September 11, 2001 tragedies. This bold new statute is the "Domestic Security Enhancement Act of 2003." (For short, DSEA). Leaked from somewhere within the Justice Department and released by the Center for Public Integrity, it quickly was featured on PBS' "NOW with Bill Moyers," in the program that aired February 7, 2003. [A download of the entire proposed statute accompanied by a section by section DOJ Summary was made available on the PBS website for the "NOW with Bill Moyers" program. The program and the Center for Public Integrity at to be commended for their quick action regarding this material.]

At this writing, the bill remains in draft form and has yet to be finalized and presented to Congress by the Bush Administration. The DOJ issued a statement, once the leak of the statute was known, emphasizing the draft nature of the bill and suggesting it merely reflects DOJ internal consideration of what additional legislative tools might be needed in the ongoing "war on terrorism."

However, a review of the statute along with its DOJ summary reveals that those who have sounded the alarm immediately, were correct to do so, draft or no draft. The proposed statute is hardly the result of some idle DOJ staff doodling. Still, despite the attention the proposed bill has received, much of the very appropriate condemnation of it--including the NOW program that aired just days after the statute was leaked--has been long on broad strokes and short on details.

A closer examination of this proposed bill is in order. Even if the bill does not survive in its present form or if growing public outrage causes it to remain on DOJ's shelf, the "Domestic Security Enhancement Act" offers an illuminating and alarming look into the depths of just how far the Department of Justice is willing to go and just how much of the Constitution Attorney General John Ashcroft is willing to shred, to satisfy the Bush Administration's lust for waging a "war on terrorism" that is increasingly becoming a war on everyone and anyone.

This tour through the Domestic Security Enhancement Act is not for the squeamish. But it is good medicine for those who still believe that we can trust our government to protect our civil liberties--a misperception which the Founding Fathers pointed out was a significant danger to the continuation of a free society. It was Benjamin Franklin who said that those who wish to trade liberty for security, will achieve neither. He is turning out to be right as rain.

A. Defining Our Terms

An overview of the Domestic Security Enhancement Act first requires a quick review of a few crucial "war on terrorism" definitions. Six are of particular importance, especially since DSEA or no DSEA, they will continue to be in almost constant use as the "war on terrorism" presses on. These are: "foreign power," "agent of a foreign power," "foreign intelligence information," "international terrorism," "federal crime of terrorism," and "domestic terrorism."

Most of these terms were given their legal definitions in earlier statutes such as the Foreign Intelligence Surveillance Act (FISA). (And who besides certain civil liberties groups, FBI divisions, and a discrete list of defense attorneys, intelligence community technophiles, and consultants were even aware of the inner workings of FISA, let alone its existence, before the PATRIOT Act turned national attention to it?) Each of them was either adopted or expanded by the 2001 PATRIOT Act. These definitions were hardly widely discussed before September 11. But since then, they have become watchwords of federal government activity and policy and an increasing part of national security parlance.

In summary form, the definitions are:

A "foreign power" can be any of six things:

--a foreign government or component,
--a "faction" of a foreign nation, which is not substantially composed of US citizens,
--an "entity" that is "openly acknowledged" by a foreign government to be "directed or controlled" by it,
--a "group" that is "engaged in international terrorism" or in preparations for terrorist acts,
--a "foreign based political organization," that is not substantially composed of US citizens, or
--an "entity" directed or controlled by a foreign government (as opposed to the foreign government simply "acknowledging" it directs or controls the entity).

An "agent of a foreign power" is defined in two ways. The first part is:

--any person not a US citizen and who is in this country as an officer or employee of a foreign power or as a member of a terrorist group, or
--any person not a US citizen who acts for a foreign power and "engages in clandestine intelligence activities" in this country "contrary to the interests" of the United States, or who aids, abets, or conspires with, anyone who does so.

The second part of the "agent of a foreign power" definition includes "any person" (which means the person can be a US citizen), who:

--"knowingly engages in" clandestine intelligence gathering activities "for or on behalf of a foreign power" provided these actions amount to a federal crime,
--engages in clandestine intelligence gathering activities at the direction of a foreign power's intelligence service, also provided these activities also involve or are a federal crime,
--"knowingly engages" in sabotage or "international terrorism" on behalf of a foreign power, or
--knowingly assists or conspires with any of these activities.

"Foreign intelligence information" also is defined in two ways. The first aspect is information (involving any person including a U.S. citizen) that "relates to" or "is necessary to" the ability of the United States to "protect against" certain acts of a foreign power or agent, namely:

--an actual or potential attack, or grave hostile acts,
--sabotage or international terrorism, and
--clandestine intelligence activities.

The second part of "foreign intelligence information" concerns two very broad areas, which is information that "relates to":

--the "national defense or national security" of the United States, or
--the "conduct of the foreign affairs" of the United States.

A creative approach to the second part of that definition could turn water cooler conversation about things like the potential war in Iraq into "foreign intelligence information." That may seem far-fetched, but the full weight of the tremendous and continual pressure being brought to bear upon these definitions by the "war on terrorism," is likely to result over the next few years in considerable bending and twisting of any original intent behind these terms.

"International terrorism" is an act that: would be a State or Federal crime if committed in the US, is dangerous to human life, is intended to intimidate or coerce civilians or to influence government policy by intimidation, coercion, kidnapping or assassination, and occurs either wholly outside the United States or transcends national boundaries. Notably, there is no limitation in this definition directing it only at aliens. A US citizen could be charged with international terrorism if that person's conduct met the definition.

The related term, "federal crime of terrorism," is a far more specific terrorism definition regarding activities not necessarily within the scope of FISA. As previously defined in federal law and considerably modified by the PATRIOT Act, the federal crime of terrorism can be any one of numerous specified crimes. The long list includes attack upon a mass transportation system and its personnel, attack upon or damage to communications systems, kidnapping and assassination, and--let this not be lost on anyone--certain computer crimes. As with "international terrorism," the definition is not restricted to aliens.

Last on the list of terms to know, the new crime of "domestic terrorism" (created by the PATRIOT Act) is similar to international terrorism. "Domestic terrorism" is: a State or federal crime, dangerous to human life, intended to intimidate or coerce civilians, influence government policy by intimidation or coercion, or affect government conduct by mass destruction, assassination, or kidnapping, and occurs within the United States. A US citizen clearly could be charged with "domestic terrorism."

There has been concern that "domestic terrorism" could be used against legitimate political protest, although the requirement that the act be dangerous to human life seems to put even the most vociferous political rally outside its reach. Nevertheless, the new crime of "domestic terrorism" was created by the PATRIOT Act to ensure that no national boundary would obstruct the reach of the war on terrorism.

B. "Domestic Security Enhancement Act of 2003"--A Top Ten

Quite clearly, the idea behind the draft Domestic Security Enhancement Act of 2003, is that existing federal law, as considerably expanded by the PATRIOT Act and the increasingly broad use of these definitions, is still not enough for appropriate investigation, detection, and prosecution of terrorism. More appears to be needed--in fact, much more.

Containing five titles and more than 70 sections--roughly half by number, if not by bulk, of the titles and sections in the PATRIOT Act--the DSEA has been dubbed "PATRIOT Act II." But it is not a mere sequel. This "Son of PATRIOT Act" is leaner and meaner. The draft statute contains many highly technical provisions which put the definitions just reviewed to shame. Rather than be bogged down in minor details, what follows is a Top Ten list of the most dramatic provisions of this sweeping proposed law.

1. Hide and No Seek. The INS and DOJ apparently was stung and irritated by the lawsuits brought by advocacy and civil liberties groups immediately following the roundups of hundreds of individuals after September 11 and also soon after passage of the PATRIOT Act. Those lawsuits demanded names and other information about these detainees, which the government had refused to provide. Although a United States District Court, in one such lawsuit, has ruled in favor of these groups and ordered the government to release the names of those still detained, DOJ has refused to do so--claiming national security interests. DOJ has obtained a stay of the ruling and has appealed the decision. That appeal ruling is yet to be issued.

Under the DSEA, these annoying lawsuits would be avoided by slamming the door shut--that is, as the DOJ Summary boldly describes it, "the government need not disclose information about individuals detained in investigations of terrorism until disclosure occurs routinely upon the initiation of criminal charges." Yet such charges might not ever be brought--the PATRIOT Act already allows an alien detained as a suspected terrorist to be held for seven days without charge at all, during which period even the individual's location need not be disclosed. Additional administrative detention, under certain conditions, can be indefinite.

The total secrecy authorized by law would thwart litigation regarding detainees, obviously considered by DOJ to be burdensome. According to DOJ's summary of the DSEA, preventing such litigation would avoid diverting DOJ resources "which would be better spent detecting and incapacitating terrorists." (This is an actual quote.)

Justifying this shocking proposal, the DOJ says that, "Publicizing the fact that a particular alien has been detained could alert his coconspirators about the extent of the federal investigation and the imminence of their own detention, thus provoking them to feel to avoid detention and prosecution or to accelerate their terrorist plans before they can be disrupted." Never mind the fact that secret arrests are constitutional anathema, regardless of the justification.

2. War? What Is it Good For (If Congress Never Declares It)? Under little known fail-safe sections of FISA, in the event of war, certain government surveillance and investigation of potential terrorists or agents of a foreign power can be conducted without any court approval or oversight--so long as Congress formally has declared war.

The DSEA would eliminate that requirement. Noting that Congress formally has declared war only rarely in US history and only once in the past 60 years, the dramatic authorities permitted by the declaration of war provisions are just sitting there. So the DSEA would change the definition to allow for these special investigative powers to be used following any Congressional authorization of the use of military force (and presumably, regardless of whether that military force is actually used) or an attack upon the United States. By this standard, the current resolutions by Congress authorizing military action in Afghanistan and in Iraq would permit unfettered secret surveillance by government officials.

3. Bringing "Agents" In From The Cold. A large part of the current federal definition of "agent of a foreign power"--which in turn is linked to the surveillance or intelligence activities to be conducted of such persons by agencies like the FBI--requires that the "clandestine intelligence" activities also "involve or may involve" a federal crime. The DSEA would eliminate that requirement. The DOJ Summary contends the federal crime aspect of the definition is superfluous, because "such activities threaten the national security regardless of whether they are illegal."

Under the DSEA, then, aside from the specifically mentioned crimes of sabotage and international terrorism, the second half of the federal definition of "agent of a foreign power" will simply be someone who engages in "clandestine intelligence gathering." This change cuts the definition loose from its moorings and lets it float free through the imaginations of the federal government.

4. Title III and FISA, Together Again for the First Time. Not long after FISA was enacted in 1978, it became widely accepted in many federal courts that surveillance activities conducted under FISA were of a unique, specialized nature, not meeting the stricter standards of wiretap or search orders under other federal statutes, notably Title III of the Omibus Crime and Safe Streets Act. Due to this understood demarcation between surveillance of foreign agents under the supposedly more easily obtained FISA warrants and the more standard investigations and prosecutions of federal crimes under the supposedly more exacting Title III surveillance warrants, it was considered that information obtained in a FISA investigation could not ordinarily be used in a standard criminal prosecution, since stricter Fourth Amendment standards had not been met when obtaining FISA-type information.

All of that changed after the PATRIOT Act and its extensive information gathering and sharing provisions. The FISA court in a rare publicly-released decision in May of 2002, criticized DOJ efforts to blur the distinctions. However, the FISA Court of Review, considering that decision on the government's appeal, agreed with the government. In a decision issued a few months ago--the only decision ever issued by the FISA Court of Review--that Court debunked the collective wisdom of the federal courts since FISA was enacted. It declared there never was any real demarcation between these two types of investigations. Intelligence information obtained in a FISA investigation could very well be used in a standard criminal case. End of discussion.

Not leaving things to the potentially differing views of the FISA Court of Review decision which likely could result in the nationwide system of scores of federal district courts, the DSEA, in several provisions, essentially would codify the ruling. Investigation of terrorist activities and of federal crimes would be treated virtually equally in terms of search and surveillance techniques. Information obtained in either sort of investigation could be used freely in charging and prosecuting any related federal crime.

5. The FISA Court Gets Teeth. Even less well known than FISA itself, prior to the attention it received following the PATRIOT Act, was the specialized court created by FISA to review unique FISA search warrant requests--that is, the FISA Court. This secretive court, which sits in the DOJ headquarters building in Washington, DC, has by all reported accounts refused only one search warrant request in its entire judicial history.

Perhaps as a special reward, the DOJ in its draft DSEA proposes to give the FISA court substantial enforcement powers against those who do not cooperate with FISA search or surveillance orders. This authority would include contempt citations for anyone refusing to obey a FISA order. Since FISA surveillance orders are issued and executed in secret, it must be assumed that a contempt proceeding or any other judicial activity by the FISA Court related to enforcing FISA orders also would occur in secret. If the FISA Court could imprison for contempt, someone deemed not to be cooperating with a FISA surveillance order, no one would ever know.

Those are the first five of the "Top 10" for this absurd "Domestic Enhancement Security Act." In Part II, we will look at the remaining five and close with some additional comments.

PART II

In the first part of this two-part article about the proposed Domestic Security Enhancement Act of 2003, we examined some essential definitions of "terrorism," "foreign intelligence," and "foreign intelligence information." And we looked at the first five of what I have identified as the "Top 10" worst features of the proposed DSEA--already being called "PATRIOT Act II." Of course, there not much to commend in the entire proposed statute, but some features are even worse than others. Now in this second part, we resume our list and look at the remaining five of the DSEA's "Top 10" and will comment on some other matters.

6. Beware the Palm Pilot. Federal investigative agencies always like to move with the technological curve. New computer systems, communication methods, electronic devices, and societal mobilities mean comparable technical and legal developments for investigation and surveillance. The PATRIOT Act took very dramatic steps to update surveillance and investigative methods, such as treating voice mail like e-mail, expanding ways of conducting investigations of Internet activity, and authorizing "single-jurisdiction" search warrants that will have force beyond the boundaries of the district court that issued the warrant.

The DSEA would go the PATRIOT Act one better. It would eliminate any distinction between the functions of a "multi function" electronic device, like a computer or a Palm Pilot. A home computer today can be used for far more than the relatively limited forms of word processing, computation, and games available when home computers were first introduced (at that time, of course, the Internet did not exist). Today, a home computer is a window to many worlds and activities. It allows chat by instant message, permits free movement among chat rooms in innumerable websites, can function as a long distance telephone by the use of a simple off the shelf program, allows indefinite storage of messages and information which can be downloaded from a dizzying array of websites, and permits viewing or listening to remote or stored video or audio information, as well as sending e-mail, visiting any number of thousands of websites, and going shopping. Other relatively new devices like Palm Pilots and enhanced- function laptops or cell phones offer similar multiple uses.

According to the DOJ, current law is unclear on whether a surveillance order can reach into other functions of a given electronic device subject to the order. The DSEA would end the confusion. Under the new DSEA provision, as the DOJ describes it, "authorization of electronic surveillance with respect to a device, unless otherwise specified, may be relied on to intercept and access communications through any of the device's functions." That is, no function of any particular device would be off limits. A surveillance order for a particular home computer need not be restricted to e-mail activity. If within the scope of the investigation, anything coming through that device, or stored on it by any means, can be obtained.

Stored information on a Palm Pilot or similar downloaded material thus would be as fair game as would e-mail traffic. This expansion of the scope of a surveillance order might have been a likely eventual result of federal court interpretation and development of wide authorities contained in the PATRIOT Act. But the DSEA leaves nothing to chance. Better to codify now than wait for a court ruling later.

7. Who Needs A Court Order? Not well known but frequently used, the federal "administrative subpoena" is the equivalent of a search warrant. They are more easily issued than a search warrant (although denial by any federal court of a search warrant request is rare indeed, the search warrant request process apparently is now viewed by DOJ as too tedious to be a chief investigative tool for these slippery terrorists). They are also more easily obtained than a grand jury subpoena, which of course means a grand jury must be empaneled for a particular investigation.

An administrative subpoena requires that a person or entity, under penalty of contempt, provide specifically identified documents or information. As mentioned, while not a search warrant itself, it functions very much like one.

Too flexible a tool to be permitted to remain in the limited areas where it is now used, the DSEA would allow the use of administrative subpoenas in any investigation of domestic or international terrorism. Also, anyone served with such a subpoena could not disclose to anyone other any legal counsel that the subpoena has been served.

The DOJ Summary is quick to point out that such a subpoena would not be outside the reach of federal courts, because any refusal to comply would require the government to go to court and secure compliance. This is a thinly veiled statement that provides no comfort when one considers that the proposed extremely wide use of such subpoenas would virtually eliminate the need for search warrants. Beyond this, who served with such a subpoena would stare the FBI in the face and refuse to comply? And if that happened, how difficult would it be for the government to obtain court enforcement of such a subpoena? An hour? Maybe two?

A similar DSEA provision would strengthen the use of "national security letters," which are another form of administrative subpoena. That provision would define or enhance penalties for refusing to comply with "national security letters."

8. Can You Say "Material Support"? Clearly one of the most flexibly defined terrorist crimes and therefore among the most likely to be utilized in terrorist prosecutions and investigations, is "material support" for terrorism. This can mean any number of activities, from actual involvement in the planning and preparation of a terrorist act to providing financial assistance to a group which is known to be or is later declared to be a terrorist group.

Under the DSEA, material support for terrorism is expanded to include "international terrorism," which is broadly defined, in addition to activity which could come under the federal crime of terrorism and or domestic terrorism. Also, if the activities involved "appear to be" terrorist activities, there need be no showing of intent to commit a terrorist act. The conviction of material support for terrorism therefore can be on appearances alone.

9. Free Consumer Credit Reports. The DOJ and FBI appear to operate under the belief that even after the substantial authority for access to consumer credit reports, educational records, and financial information under the PATRIOT Act, consumer reports are still not easy enough to get. The DOJ summary of the DSEA indicates that obtaining these reports could still require time consuming and pesky subpoenas. That is, some federal agent would actually have to take time out of a busy day chasing down terrorists, to sit down and write up these silly things. And what's more annoying, consumer credit agencies and credit card companies can get these reports easier than the government (perhaps that's because a credit card company cannot use private financial information to charge a person with providing material support for terrorism and then throw them in jail forever, but let's not muddy the waters with facts).

The DSEA would allow the government to "obtain credit reports on virtually the same terms that private entities may." That is, at the snap of a finger, without a court order, and without the person's knowledge or consent. Such reports may be obtained by agents upon certification that they are needed, so long as they are used only to "enforce federal law." However, since the federal law on terrorism is rapidly stretching from one end of the Washington Mall to the other, that sort of "restriction" is very little restriction at all.

10. Dead Men Can Tell Tales. Investigating live persons is not good enough for the FBI. The government wants to investigate dead ones, too. Under the DSEA, the federal government could order and supervise autopsies of victims killed in a terrorist act. Supposedly, the need for this is particularly acute if the terrorism occurs outside the United States but results in fatalities who are United States nationals. Rather than wait for victim remains to be returned to the United States for whatever autopsies might be conducted by appropriate authorities here, the federal government wants to order an autopsy there.

According to the DOJ summary, "This proposal is not intended to result in the hiring of medical examiners by federal law enforcement agencies. Rather, the autopsies will be performed by local coroners, private forensics investigators, or the Armed Forces Medical Examiner and his staff."

Frankly, nobody saw this one coming. Getting the federal government or on-site federal investigative agents involved in ordering autopsies of United States citizens on foreign soil could create as many problems as it solves. Regardless, not one minute can be lost when a terrorist investigation is at stake.

C. And That Is Not All

Beyond this top ten of new or expanded authorities or activities for the federal government, the DSEA contains numerous other provisions. Not all of them can be described here. A few are worthy of note:

--DNA Data Bank: The PATRIOT Act greatly expanded crimes for which collection of DNA samples would be required of those convicted of them. The DSEA goes the next step. DNA samples would be collected not just from those convicted of terrorist crimes, but also those suspected of terrorist crimes. Keep in mind that conspiring, aiding, providing material support, and attempting to commit a terrorist act, are all separate crimes in themselves. Someone suspected of committing any of these crimes would be required to submit a DNA sample for the data bank.

The DNA bank also would include those suspected of being members of a terrorist organization, and "certain classes of aliens" such as those engaged in activity that "endangers national security." Apparently, the DOJ itself, in unparalleled wisdom, will decide on its own what sort of "activity" that is. Information in the databank could be shared with any agency. That includes State, local, or foreign law enforcement agencies.

--More Information Sharing: Beyond the wave of information sharing generated by the PATRIOT Act, the DSEA would authorize new forms of information sharing. The bill would allow government sharing of "consumer credit information, visa-related information, and educational records" with "state and local law enforcement." Nothing need be kept at the federal level. How well monitored this information sharing would be and how carefully such private or sensitive information would be treated as it moves both horizontally and vertically through federal, state, and local law enforcement agencies, is apparently of no concern to DOJ.

--But Keep It Secret. In several DSEA provisions, other information previously available to the public under the Freedom of Information Act would become secret or rendered severely restricted. This includes blueprints and layouts of buildings in the US Capitol area, toxic release scenarios involving dangerous chemicals required to be filed by certain private companies under the Clean Air Act, information to be considered by federal courts under the Classified Information Procedures Act, and certain grand jury information in terrorist cases requiring secrecy even by counsel.

--Stick Around for Awhile, Or Just Die. In four sweeping provisions, the DSEA would impose the most severe penalties yet known in the federal system for those charged or convicted of terrorist acts. First, a person charged with terrorism would not be entitled to pretrial release. The person would stay in jail until trial. Second, someone convicted of terrorism would face a mandatory minimum of 10 years of post-sentence supervised release. (Under the PATRIOT Act, there is no maximum--supervised release period for someone convicted of a terrorist crime can be up to life.) Also, any terrorist crime would fit under these new provisions, eliminating the previous requirement for certain enhanced sentences that the terrorist crime must have involved or created a foreseeable risk of death or serious injury. Third, there would be no statute of limitation for any terrorist crime. This also eliminates a previous requirement for dispensing with a limitation period for terrorism, that the terrorist crime must have involved or have created a foreseeable risk of death or serious injury. Fourth, the death penalty could be imposed for any terrorist crime which resulted in a fatality.

--Breaking Up Is Easy To Do: Under existing federal law, loss of American citizenship can occur in certain rare instances, such as swearing allegiance to a foreign state or serving in the armed forces of a foreign state. The DSEA would expand that list. Under the DSEA, someone would lose US citizenship by serving in a "hostile terrorist organization," or by providing "material support" to a group designated as a terrorist organization--if that group engages in active hostilities against the United States.

This rare and extreme sanction of loss of citizenship no longer would be so far fetched, given the various ways that "material support" can occur, the dozens of groups already designated by the US as terrorist organizations (information which might be available but which is hardly well known), and the consistent designation of new terrorist organizations. Loss of citizenship would be more than a life-changing result. Nowadays, given the "enemy combatant" label being applied (in certain instances to US citizens but so far most frequently to aliens) and also given the specter of the military tribunal which can be used to try non US citizens of terrorist offenses, loss of citizenship could be the ultimate sanction.

In addition, loss of citizenship would not have to be accompanied by any declared intent. The intent could be "inferred" by actions. Therefore, as the DOJ puts it, "service in a hostile army or terrorist group" would be "prima facie evidence of an intent to renounce citizenship."

--We Didn't Want You Here Anyway: The DSEA would also tighten other security laws, increase penalties for aliens who do not leave the United States when ordered, increase authority for denying aliens entry into the US, and provide for "expedited removal" of aliens convicted of certain criminal or terrorist offenses even if the alien is a permanent United States resident.

D. This Far and No Farther

Whatever the reason that this draft statute was leaked, the Domestic Enhancement Security Act, if it is not a hoax, throws down the constitutional gauntlet. Should it ever be submitted to Congress in anything like its present form, the bill should never come out of committee. Since September 11, this country has been avoiding the hard questions of how much liberty can be traded for security, if indeed true security is what we are achieving. The DSEA makes further avoidance of that question impossible.

The authorities which the DSEA claims for the government are unprecedented, even in this post-PATRIOT Act environment. They include secret detentions or arrests, secret enforcement of secret FISA surveillance orders, further erosion of judicial oversight in information gathering and investigative activities, conviction for "material support" for terrorism which in some cases can be obtained without a showing of intent, expanded use of the administrative subpoena, pulling the shroud of government secrecy over even more information, and secret sharing among State and local--as well as federal--law enforcement agencies of the secret results of secret surveillance activities.

To suggest, as the DOJ implies throughout its summary of this statute, that these authorities are all within the meaning of the First, Fourth, Fifth, Sixth and Eighth Amendments is to render the Bill of Rights are mere footnote to the war on terrorism. This statute and the DOJ arrogance which produced it must be stopped now.

A second reason for this bill never to come out of committee is that it contains no sunset provision. Many of the most disturbing expansion of federal surveillance and investigative authority granted by the PATRIOT Act, and found in Title II of that statute, are scheduled to sunset automatically on December 31, 2005. Another large portion of the PATRIOT Act, Title III, involving complex provisions that rewrite federal banking laws and which have received little or no attention in the general media, is to sunset by October 1, 2005 if Congress passes a joint resolution so providing.

One must wonder whether Congress will have the courage not to meddle with Title II's sunset provision and to approve the Title III sunset resolution when the time comes, for there surely will be considerable political and Executive Branch pressure against allowing any part of the PATRIOT Act to sunset. But there is no such sunset provision at all in the DSEA. It is bad enough that the remaining eight titles of the PATRIOT Act are permanent. Should the DSEA pass, there is no built in mechanism to recall it.

Another reason why such a bill must never to come out of any Congressional committee is the dangerous political atmosphere created by the war on terrorism. Such a bill, were it to come to the House and Senate floor, might actually be passed by a Congress too trusting of federal agencies, a Congress now controlled by the ruling party in the White House, and a Congress which in any event is unwilling to appear "soft on terrorism."

The vote on the PATRIOT Act was as disheartening as the Act itself--357 to 66 in the House, 98 to 1 in the Senate. Lost in the rush to give the Executive Branch anything it wants is the fact that the Foreign Intelligence Surveillance Act itself, employed in large part by the PATRIOT Act as well as by this draft DSEA in expanding federal surveillance and investigative authorities, was the result of the Church Committee inquiry into the surveillance excesses of the FBI in the 1960s. What goes around comes around.

The enactment of the PATRIOT Act and the nearly 20 other significant laws, executive orders, and regulations which came into being since September 11, along with other developments, present the possibility that this country could become a form of national security state. Among the characteristics of such a state are reduced role of the judiciary, executive treatment of suspects, and increased government secrecy. There is still time to halt this country's nearly inexorable movement in that direction. But the passage of the Domestic Security Enhancement Act would essentially herald the arrival of a national security state and would make it that much more difficult to bring this nation back from the brink.

That the DSEA would make the internal rounds of the Justice Department even in draft form is dangerous enough. This danger must not be unleashed. The war on terrorism cannot become a war on constitutional government.

C. William Michaels is an attorney and writer in Baltimore. His book, No Greater Threat: America After September 11 and the Rise of a National Security State (Algora Publishing, 2002) contains a complete analysis of the entire USA PATRIOT Act, the only book to do so. For more on the book and author, go to "www.nogreaterthreat.com."