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Draft Patriot Act II Legislation Discovered

by Cyrus D. Mehta

While President Bush is obsessed about waging war with Iraq, despite mounting anti-war sentiment all over the world, his Attorney General, John Ashcroft, is obsessed about curtailing the rights of citizens and noncitizens in the US.

The Center for Public Integrity recently obtained secretly leaked draft legislation from the Department of Justice (DOJ) dated January 9, 2003, which would give the government additional powers to increase domestic intelligence-gathering, surveillance and law enforcement prerogatives, and simultaneously decrease judicial review and public access to information.

The bill has been drafted by the staff of Attorney General, John Ashcroft, and is entitled "The Domestic Security Enhancement Act of 2003," and is also being known as "Patriot Act II"

Just as the initial PATRIOT Act was passed in Congress after the September 11 attacks, without too much opposition, it is apparent that the Justice Department would attempt to sneak in this legislation after war has commenced against Iraq and in an environment heightened insecurity. Some of the key provisions of the Domestic Security Enhancement Act of 2003 include:

Section 201, "Prohibition of Disclosure of Terrorism Investigation Detainee Information": Safeguarding the dissemination of information related to national security has been a hallmark of Ashcroft’s first two years in office, and the Domestic Security Enhancement Act of 2003 follows in the footsteps of his October 2001 directive to carefully consider such interest when granting Freedom of Information Act requests. While the October memo simply encouraged FOIA officers to take national security, "protecting sensitive business information and, not least, preserving personal privacy" into account while deciding on requests, the proposed legislation would enhance the department’s ability to deny releasing material on suspected terrorists in government custody through FOIA.

In 2002, several organizations sued the government to obtain release of the names of noncitizen detainees under the Freedom of Information Act (FOIA). In Center for National Security Studies, et al v. U.S. Department of Justice, 2002 US District Court, Lexis 14168 (D.D.C. August 2, 2002), the American Immigration Law Foundation is a plaintiff in this case, a federal district court in Washington, D.C. held that "secret arrests are ‘a concept odious of a democratic society’ and profoundly anti-thetical to the bedrock of values that characterizes a free and open one such as ours." It rejected the government’s argument that releasing the names would deter the detainee from cooperating, hamper the government’s investigation, and allow terrorist organizations to interfere with pending proceedings by creating false and misleading evidence. The Court ordered the release of the detainee names as well as those of their attorneys. However, it upheld the government’s request to withhold the dates of arrests, detention and release, as well as the location of arrest and detention.

Section 201 would effectively overrule this decision.

Section 202, "Distribution of ‘Worst Case Scenario’ Information" This would introduce new FOIA restrictions with regard to the Environmental Protection Agency. As provided for in the Clean Air Act, the EPA requires private companies that use potentially dangerous chemicals must produce a "worst case scenario" report detailing the effect that the release of these controlled substances would have on the surrounding community. Section 202 of this Act would, however, restrict FOIA requests to these reports, which the bill’s drafters refer to as "a roadmap for terrorists." By reducing public access to "read-only" methods for only those persons "who live and work in the geographical area likely to be affected by a worst-case scenario," this subtitle would obfuscate an established level of transparency between private industry and the public.

Section 301-306, "Terrorist Identification Database": These sections would authorize creation of a DNA database on "suspected terrorists," expansively defined to include association with suspected terrorist groups, and noncitizens suspected of certain crimes or of having supported any group designated as terrorist.

Section 312, "Appropriate Remedies with Respect to Law Enforcement Surveillance Activities": This section would terminate all state law enforcement consent decrees before September 11, 2001, not related to racial profiling or other civil rights violations, that limit such agencies from gathering information about individuals and organizations. The authors of this statute claim that these consent orders, which were passed as a result of police spying abuses, could impede current terrorism investigations. It would also place substantial restrictions on future court injunctions.

Section 405, "Presumption for Pretrial Detention in Cases Involving Terrorism": While many people charged with drug offenses punishable by prison terms of 10 years or more are held before their trial without bail, this provision would create a comparable statute for those suspected of terrorist activity. The reasons for presumptively holding suspected terrorists before trial, the Justice Department summary memo states, are clear. "This presumption is warranted because of the unparalleled magnitude of the danger to the United States and its people posed by acts of terrorism, and because terrorism is typically engaged in by groups – many with international connections – that are often in a position to help their members flee or go into hiding."

Section 501, "Expatriation of Terrorists"": This provision, the drafters say, would establish that an American citizen could be expatriated "if, with the intent to relinquish his nationality, he becomes a member of, or provides material support to, a group that the United States has designated as a ‘terrorist organization’." But whereas a citizen formerly had to state his intent to relinquish his citizenship, the new law affirms that his intent can be "inferred from conduct." Thus, engaging in the lawful activities of a group designated as a "terrorist organization" by the Attorney General could be presumptive grounds for expatriation.

The Supreme Court has held that citizenship cannot be lost without a determination that it was voluntarily relinquished by the individual. Afroyim v. Rusk, 387 U.S. 253 (1967). Another Supreme Court decision ruled that expatriation is only constitutionally permissible where the government can prove by a preponderance of the evidence that a party not only voluntarily engaged in the expatriating acts, but that in doing so intended to relinquish citizenship. Vance v. Terrazas, 444 U.S. 252 (1980).

Section 504, "Expedited Removal of Aliens Convicted of Even Minor Crimes": Under current law, the Attorney General may chose to conduct limited paper reviews of deportation charges against non-lawfully admitted aliens convicted of aggravated felonies without the right to a hearing before an Immigration Judge and without the right to seek discretionary relief. Section 504 would extent the authority of the Attorney General to conduct such limited paper reviews to any noncitizen "whether or not admitted into the United States," meaning that lawful permanent resident immigrants would be covered as well as non-lawfully admitted persons. This extended authority would not just limit reviews only to noncitizens convicted of aggravated felonies, but also to any noncitizen convicted of virtually any controlled substance offense, as well as those convicted of certain firearm offenses or other miscellaneous crimes. The provision would also limit judicial review in federal court after the alien receives a removal order and would entirely bar federal court habeas corpus jurisdiction. If an alien is subject to limited paper review, Section 504 would bar any relief from removal without regard to how minor the offence is or now long ago it occurred.

It remains to be seen whether any of the measures initiated by the DOJ after September 11 have enhanced our security. They have unfortunately resulted in the targeting of individuals, particularly noncitizens, from countries with significant Islamic populations. The Patriot Act II must be opposed in its infancy, before it raises its ugly head on the American people.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.