The draft proposal, called the Domestic Security Enhancement Act of 2003, builds on the USA PATRIOT Act, which was enacted in October 2001.

The security challenges facing the United States are ongoing and serious, and Human Rights First supports responsible and appropriate efforts by the U.S. government to enhance public safety. However, over the last 17 months the Bush Administration has pursued a raft of new measures that undermine basic civil liberties and human rights, many of which bear no obvious relationship to increased security. This draft legislation is the most recent example.

"This bill would sweep away important constitutional checks on executive power that are fundamental to our democracy," said Elisa Massimino, Washington Director of Human Rights First. "Where the courts have questioned the constitutionality of the Administration's actions, the Ashcroft legislative proposal would wall off those areas from judicial inquiry. The bill reads like a Department of Justice wish list to exempt itself from oversight by the courts."

For example, the draft legislation would legalize secret arrests, a practice ruled unconstitutional by a federal court in a lawsuit by groups that sought access to the names of more than 1000 people rounded up by the Justice Department after September 11, 2001. The Department has refused to give the names of those it jailed in that roundup and has appealed the court's order to turn over the names. Likewise, where the courts have begun to question the constitutionality of the Administration's denial of access to legal counsel to U.S. citizens being held in military jails, the draft legislation provides a solution by paving the way for the government to strip these detainees of their citizenship altogether.

The 86-page bill makes more than 100 changes to the law. Among the most troubling are:

1. Authorizes Secret Arrests. The bill overturns a federal court decision requiring the Justice Department to turn over the names of the people it detained in post-9/11 sweeps, a ruling that the government has appealed. Although the Justice Department has argued on appeal that current law does not require that it disclose these names, the draft bill hedges those bets by explicitly authorizing the government to keep secret the names of those it arrests and jails without charge.

2. Authorizes Stripping Americans of their Citizenship for Engaging in Constitutionally Protected Conduct. Current law reflects the sacrosanct nature of American citizenship by making it very difficult for the government to take it away from people. Only in rare cases, for example when a person serves in the armed forces of a state at war with our country, can the government deprive an American of his or her citizenship. And even in those cases, the government must prove that there was a specific intention to relinquish American citizenship by engaging in that conduct.

The Justice Department's draft bill takes a different approach to citizenship. It would create a system where the government can strip an American of his citizenship as a form of punishment if, for example, the person gave "material support" to a group designated by the government as "terrorist." The question of what constitutes "material support" has been challenged in the courts, because it is vague and appears to include political association and speech that is protected by the Constitution. The draft bill defines "material support" to include "instruction or teaching designed to impart a specific skill."

3. Permits Extradition -- including of US Citizens -- without Treaty. The Justice Department proposes in the draft bill to upend a fundamental principle of liberty established virtually at the foundation of our democracy: that the executive may not deliver a person to prosecution by a foreign government except pursuant to treaty or explicit statutory authority. Extradition treaties between countries typically provide specific conditions for prosecution (for example ensuring fair trial and protecting against prosecution under unjust laws). The Administration could, if it wanted to, negotiate extradition treaties to cover any gaps it finds. Instead, it proposes to bypass the treaty process, creating a situation in which even American citizens could be sent for trial to countries with which the U.S. does not have an extradition treaty – countries that include Saudi Arabia, Syria, Libya, China, Yemen, and Indonesia.

4. Erases Court Orders Issued to Prevent Police Spying. Last year, Attorney General Ashcroft unilaterally lifted restrictions on domestic spying by the FBI that had been put in place after revelations that the government had conducted oppressive surveillance on Martin Luther King, Jr. and other civil rights leaders deemed "subversive." Many state and local law enforcement agencies, some with disturbing histories of similar abuses, are party to court-supervised consent decrees arising out of legal challenges to these practices. These consent decrees prohibit illegal spying by police departments, and as such the Justice Department argues that they inhibit "effective cooperation" with the federal spying now permissible under the new Ashcroft guidelines. The draft legislation addresses this problem by abolishing all of these consent decrees.

5. Radically Expands Grounds on which Non-Citizens -- including Legal Permanent Residents – Can be Deported Without a Hearing and Further Limits Judicial Review of Attorney General Decisions. The bill has a number of provisions that are simply unrelated to terrorism, including one that broadens the already overly-broad grounds on which non-citizens can be deported without a hearing, and another that applies those provisions to legal permanent residents, as well as other immigrants. What this means in practice is, for example, a long-time legal permanent resident who wrote a bad check in 1976, is now subject to mandatory deportation under "expedited removal," a form of administrative decision that skips the courts altogether. The bill eliminates the possibility of judicial review for whole categories of people of the Attorney General's decision to deport them.