Antiterrorism draft could expand spying

A proposal that a government watchdog group says is being circulated in the Department of Justice would expand the electronic surveillance powers of law enforcement and spy agencies within U.S. borders, and that’s raising concerns from civil liberties advocates and at least one U.S. senator.

A proposal that a government watchdog group says is being circulated in the Department of Justice would expand the electronic surveillance powers of law enforcement and spy agencies within U.S. borders, and that’s raising concerns from civil liberties advocates and at least one U.S. senator.

The Center for Public Integrity, a government watchdog group, posted what it said is a Justice Department draft follow-up to the USA Patriot Act, an antiterrorism law signed by President George W. Bush in October 2001. A PDF version of the draft is available at the center’s Web site, and an HTML version is available.

Among the provisions in the draft is a proposal to extend the limits on court orders for electronic surveillance from 30 to 90 days in antiterrorism investigations inside the U.S., and the limit on wiretapping devices such as pen registers and trap and trace devices from 60 to 120 days. A pen register is an electronic device that can be attached to a telephone line and record outgoing numbers and information about incoming calls. A trap and trace device can capture the originating number of electronic devices such as telephones.

The draft also would relax the need for court orders for electronic surveillance, allowing surveillance of suspected terrorists without a court order in “emergency situations.”

It’s not clear how those changes would affect other electronic communications, such as e-mail.

The draft also would eliminate most court-sanctioned consent decrees that law enforcement agencies entered into before the terrorist attacks of Sept. 11, 2001, which placed limits on gathering information. Some law enforcement agencies “lack the ability to use the full range of investigative techniques that are lawful under the Constitution, and that are available to the FBI,” the draft document noted.

The Justice Department didn’t comment on the specific document, but an official there said the agency is constantly looking at ways to fight terrorism, with some ideas discarded along the way. The official disputed press reports saying the document had been distributed to the White House, saying no “final proposal” was sent there.

“The President expects all his cabinet departments that are involved in homeland security, including the Department of Justice, to make sure we are doing everything we can to protect the American people,” the official said in an e-mail statement. “It should not be surprising that the Department of Justice takes that responsibility seriously and discusses additional tools to protect the American people. We are continually considering anti-terrorism measures and would be derelict if we were not doing so. The Department’s deliberations are always undertaken with the strongest commitment to our Constitution and civil liberties.”

Senator Patrick Leahy, a Vermont Democrat and member of the Senate Judiciary Committee, called on the Department of Justice to participate in a public debate on the issues addressed in the draft.

“The early signals from the (Bush) Administration about its intentions for this bill are ominous, and I hope Justice Department officials will change the way they are handling this,” he said in a statement. “For months, and as recently as just last week, Justice Department officials have denied to members of the Judiciary Committee that they were drafting another antiterrorism package. There still has not been any hint from them about their draft bill.”

The American Civil Liberties Union and the Center for Public Integrity’s Bill Allison expressed concern over extensions of court limits on electronic surveillance.

“By seeking to overturn court-approved limits against police spying on political and religious activities, allowing for increased government surveillance and the ability to wiretap without going to court, the latest (Justice Department) proposal would do serious harm to civil liberties in America,” said Gregory T. Nojeim, associate director of the ACLU Washington National Office, in a statement.

Allison, the Center for Public Integrity’s managing editor, said his organization received the draft from a confidential source but also confirmed its authenticity with other sources. “Taken as its whole, it is a fairly disturbing document in terms of what it would do to civil liberties,” Allison added. “There are any number of troubling provisions.”