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  • The Domestic Security Enhancement Act of 2003:A Glimpse into a Post–PATRIOT Act Approach to Combating Domestic Terrorism
  • Timothy Scahill (bio)

In early 2003, the Center for Public Integrity, a nonpartisan organization conducting investigative reporting and research on U.S. public policy issues, leaked an extensive piece of proposed legislation, drafted by former Attorney General John Ashcroft's Department of Justice, entitled The Domestic Security Enhancement Act of 2003 (DSEA) (Department of Justice 2003a). To put it mildly, the DSEA contains sweeping new law enforcement powers far beyond those contained in the already derided Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act or simply the PATRIOT Act) (Musch 2003, 211). The comprehensive similarity of the draconian provisions contained in the DSEA has lead critics of the Act to dub it PATRIOT Act II.

Partially due to the absence of any new acts of domestic terrorism after September 11, 2001, the leak of the DSEA created a firestorm of controversy. Critics of the act and civil libertarians from a variety of political [End Page 69] persuasions vocally and publicly opposed the DSEA (ACLU 2003, 2004). Following a month of vocal criticism, the Justice Department essentially disavowed its intention to seek enactment of the DSEA as set forth in the leaked draft (Department of Justice 2003c). The Department of Justice downplayed the significance of the DSEA draft, implying that it was merely a "discussion draft" and asserting that neither the attorney general nor the White House had seen it. But the latter assertion later appeared to be false when documentation surfaced that the DSEA indeed had circulated it to both Vice President Dick Cheney's Office and Speaker of the House Dennis Hastert (Lewis and Mayle 2003).

Since 9/11, critics of the original PATRIOT Act have successfully kept it in the public discourse. This vigilance has become increasingly apparent as the December 31, 2005, deadline for the sunsetting of many PATRIOT Act provisions draws closer and Congress debates how to proceed. In sharp contrast to this public vigilance, well over two years have passed since the PATRIOT Act II controversy, and few people have further discussed the DSEA. Despite the Justice Department's apparent misrepresentation regarding circulation of the DSEA, there did not appear to be any official action on the DSEA, and the DSEA faded from public discussion. The disavowal by the Justice Department and the lack of official action perhaps led to a consensus that the Justice Department recognized that it had overreached its authority in its quest for new and greater domestic law enforcement powers. This assumption has proven to be far too optimistic.

Barring another significant act of terrorism on U.S. soil, it seems unlikely that Congress will enact the DSEA in a single piece of legislation (Holland 2003; Hudson 2003). Unfortunately, the DSEA has already proven to be far from a dead letter. Since the official disavowal by the Justice Department in 2003, numerous provisions of the DSEA have begun to show up as riders on other pieces of legislation. As a result, Congress already enacted a number of DSEA provisions (Edgar 2003). The most egregious example of this insidious phenomenon was the House version of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), proposed in late 2004. The House intended the IRTPA to implement the recommendations of the 9/11 Commission. Instead, over the objection of [End Page 70] members of the 9/11 Commission, House leadership added a laundry list of former DSEA provisions to the bill. No less than 12 DSEA provisions appeared in the House version of the bill, including a great many of the more extensive law enforcement powers (and abuses of civil liberties) contained in the DSEA. This version included provisions that relieve government prosecutors of their burden of showing that an individual is dangerous or poses a flight risk when charged with a terrorism-related offense (IRTPA §2602), a broad expansion of criminalization of material support for terrorism that would criminalize mere association with certain organizations (§2043), severe limitations on the use of the writ of habeas corpus in immigration and deportation proceedings (§3010...

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