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United States: law professor discusses leaked draft of revised 'Patriot Act' that proposes revocation of US citizenship of people who help terrorists.

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Friday, 28 March 2003


PETER THOMPSON:  The land of the free has apparently decided there is a bit too much freedom for now. According to a leaked document, the Bush administration is planning further legislative crackdowns to bolster home security. The introduction of the Patriot Act in the wake of September 11, provided federal agencies with more surveillance options under less judicial supervision. Now, the US Attorney-General, John Ashcroft, is preparing to go further with what critics have dubbed ‘Patriot Act II’. It seeks to broaden the scope of surveillance and allow the Attorney-General to revoke American citizenship of people helping organisations the administration deems ‘terrorist’. The draft has not been officially released but it has been leaked to the Center for Public Integrity and reviewed by David Cole, a Professor of Law at Georgetown University. He is also the author of Terrorism and the Constitution , and joins us this morning.


David Cole, welcome to Radio National here in Australia.


DAVID COLE: Thank you for having me.


PETER THOMPSON: Could you just begin by outlining: what were the key foundations of the Patriot Act that already were passed—in fact passed within a month of September 11?


DAVID COLE: The initial Patriot Act was essentially a wish list that the law enforcement (Justice Department), put forward to Congress and gave them a vastly increased power to conduct surveillance on American citizens and foreign nationals, especially foreign nationals, often without judicial oversight, in any case certainly without meaningful judicial oversight. It also provided for the deportation of foreign nationals for their connections to terrorist groups without regard to whether they in fact engaged in terrorism. It authorised keeping foreign nationals out of the country based solely on their speech, not on their conduct. It authorised the Attorney-General to lock up foreign nationals based on simply certifying that he suspects that they are terrorists without any kind of a hearing in which he actually has to prove that. So it was a pretty sweeping provision and one would have thought that they got everything they needed, but apparently not.


PETER THOMPSON: What were the practical realities of implementing that act? How has it changed things in the US?


DAVID COLE:  It is very hard to say because so much of the implementation has been  secret, and the Justice Department has refused, even to inform Congress, for example, of how often it has invoked the various new surveillance powers it has been given. So at this point it is very difficult to see. What you can see on the ground is that the government has undertaken a massive preventative detention campaign, has adopted a number of measures that are targeted at Arab and Muslim foreign nationals in a very broad sweeping way, [inaudible] of the specific surveillance authority [inaudible] implement [inaudible] everything is done in secret.


PETER THOMPSON: Now, the Center for Public Integrity has received a draft copy of this supposed new act; you were given it to review. What are the main provisions of the draft as it stands?


DAVID COLE: [inaudible] among other things it would authorise, for the first time in American law, [inaudible] and never [inaudible].


PETER THOMPSON: I think we will have to call you back because that line has faded.


David Cole, you were outlining what you thought might be the main concerns in this draft—and I should stress it is a draft of this Patriot Act II. What are they?


DAVID COLE: Well, it authorises secret arrests in which the government [inaudible] from the public. [inaudible] to single-handedly take out foreign nationals and deport them simply by saying that their presence here is inconsistent with our foreign policy. It authorises the government to strip citizenship of even native-born US citizens for associations with terrorist organisations without having to prove that those associations were unlawful.


PETER THOMPSON: Can I just actually ask you just something further on that issue? ‘Strip US nationals’—that is people born in the US—‘of citizenship’, which would make them stateless, would it?


DAVID COLE: Right. It would make them stateless. It would actually turn them into foreign nationals. One of the interesting things about the first Patriot Act was that the title was designed to imply that if you were opposed to it you were not a patriot. Well, here they have gone a whole big step further and say: if you associate with the other side we are going to turn you into a non-national, and then of course you would be subject to all these rather onerous provisions that we have, for the most part, reserved for foreign nationals and kept ourselves free from.


PETER THOMPSON: That is the sort of thing actually the Soviet Union did to Aleksandr Solzhenitsyn.


DAVID COLE: Yes, well, it is a very, very dangerous road to go down. To me it is largely symbolic but it is designed to—I don’t think they are going to go around and actually take away citizenship from a lot of people, and I think they will have a tough time doing it given the Supreme Court precedents saying that citizenship is a constitutional right. But it is really designed to send a message, and the same message that George Bush gave when he said, ‘You are either with us or you are with the terrorists’, suggesting that anyone who is critical of the administration’s policies is somehow not an American.


PETER THOMPSON: Can I raise the issue of a DNA database; what might it include?


DAVID COLE: Well, this is another troubling provision. It would create a DNA database for ‘suspected terrorists’ but it would not be people who have been proved to have engaged in any kind of illegal activity. It would include people who the government merely suspects of belonging to terrorist organisations, and will include foreign nationals who are charged under a range of immigration violations. And so it is sort of the technology moving forward renders us more vulnerable from terrorists of course, but as this provisions shows, it also renders us much more vulnerable from our own government.


PETER THOMPSON: David, just one final question. There has been even denial that this draft exists, hasn’t there? What do things stand?


DAVID COLE: Where it stands is that it was leaked by a Justice Department official—an unnamed Justice Department official. The government very quickly sort of back-peddled and said this is just a thought piece. But it is a 120 page, very final-looking, very polished draft; so I don’t think it is just a thought piece. And my strong suspicion is that we will see it or some version of it introduced in short order in Congress.


PETER THOMPSON: David, thank you very much, and sorry for the difficult telephone line.


David Cole who is a Professor of Law at Georgetown University.


That document had been leaked to the Center for Public Integrity; he was asked to review it. The Patriot Act II as it is being called.