[Peace-discuss] Patriot Act

Tue Mar 9 16:06:29 CST 2004

[Note local reference toward the end.  We perhaps should be working on
local governmental bodies to "shelve" the Patriot Act.  --CGE]

	Reading over your shoulder
	The push is on to shelve part of the Patriot Act
	By David Mehegan, Globe Staff, 3/9/2004

`It's the most naked form of intrusion into one's life -- to get into a
person's mind, what they are reading, what their literary interest is,"
said Ciaran McCabe. "It's quite horrifying, and I'm willing to do whatever
it takes to stop it."

The intrusive power McCabe is talking about is Section 215 of the USA
Patriot Act, the sweeping federal antiterrorism law passed soon after the
Sept. 11 attacks. While much of that law is uncontroversial, Section 215
is sowing fear and anger about the government's new power to learn what
books people are buying and borrowing.

McCabe, a customer at the Bookloft in Great Barrington who lives in
Housatonic, is one of thousands of people to sign a new petition to change
it.

The Patriot Act, passed overwhelmingly by Congress in October 2001 (357-66
in the House, 98-1 in the Senate), gave law enforcement a long list of new
tools. Under Section 215, the FBI can go to a secret court that operates
under the Foreign Intelligence Surveillance Act and apply for an order
authorizing demand for "any tangible things." Such things might include
medical records, university academic records, or records of bookstores or
libraries. When served with such a demand, a record-holder is required to
keep it secret, even from superiors.

Discontent about Section 215 has been smoldering; 253 cities and towns
across the country have passed nonbinding resolutions expressing
opposition to it. It flamed up last month when the American Booksellers
Association, the American Library Association, and the writers group PEN
American Center announced a drive to collect a million signatures in
support of several bills pending in Congress to amend the law. The
campaign is supported by a who's-who of publishers, booksellers, and
library organizations, including the Barnes & Noble and Borders bookstore
chains, publishers Random House and Simon & Schuster, the American
Association of Law Libraries, and the Authors Guild.

"We have a tradition of openness and freedom," says Judith Krug, director
of the Office of Intellectual Freedom of the American Library Association,
"and while we have to take certain precautions, we're not about to give up
the core values of this republic to protect against all exigencies. You
can give up every freedom you have and still not be safe." Oren Teicher,
chief operating officer of the American Booksellers, says no deadline for
turning in signatures was given to member stores but that more than 25,000
signatures had come in as of last week.

"We were proud to sign the petition," says Stuart Applebaum, spokesman for
Random House. "If privacy is not protected, it may have a chilling effect
on people who may hesitate to borrow books from libraries or buy books."
Nick Taylor, president of the Authors Guild, says, "This looking over
people's shoulders without having to come up with a plausible
law-enforcement reason is quite disturbing."

Under 215, the FBI does not have to show that a person whose records are
sought is suspected of a crime, nor exactly why his or her records are
needed. It must certify that the search is part of an authorized
investigation of foreign espionage or terrorism, that the records are
relevant, and that a search is not directed against a "United States
person . . . solely upon the basis of activities protected by the First
Amendment." Given that certification, the court cannot refuse to grant the
order. The Justice Department must report to Congress every six months on
the use of Section 215, but the details are classified.

Several bills are pending in Congress to soften or repeal Section 215 (or
other parts of the Patriot Act), including one in the House filed by the
Vermont independent Bernard Sanders and another, with House and Senate
versions, called the SAFE Act. Sanders's bill would exempt bookstores and
libraries from Section 215, while the SAFE Act, filed in the Senate by
Larry Craig , a Republican from Idaho, would require the FBI to show
"specific and articulable facts giving reason to believe that the person
to whom the records pertain is a foreign power or an agent of a foreign
power." Craig's bill has 14 cosponsors, including Senator John Kerry, who
voted for the Patriot Act (only Democrat Russell Feingold of Wisconsin
voted against it).

Attorney General John Ashcroft has strongly defended the Patriot Act. In a
speech last fall, he dismissed worries about Section 215 as "baseless
hysteria" and said it had never been used against a bookstore or library.
And since then? "The section is classified," Justice Department spokesman
Mark Corallo said in a telephone interview last week, "and at this point
the information has not been declassified."

Still, Corallo insists the law is no threat to law-abiding Americans.
"Section 215 requires the government to make a showing of fact to a
federal judge that the information is needed to protect against
international terrorism or clandestine international spying," he says. "It
can't be used in garden-variety criminal investigations. Congress knows
exactly what we are doing. Not only do they get to see the classified
reports, numbers, and details, but any member of Congress can ask for a
briefing. There is ample oversight." In his State of the Union address in
January, President Bush called for an extension of the law's provisions
that are to expire next year, including Section 215.

But the book world isn't buying it. Objection to Section 215 is wide and
deep among booksellers, and not just in the Northeast. "It started in
Vermont, but it has moved throughout the country," says Wanda Jewell,
executive director of the Southeast Booksellers Association, in Columbia,
S.C. "Everyone thinks it's important that people have their privacy in
what they buy to read and check out from libraries."

"People are really concerned about it," says Linda Barrett Knopp, manager
of Malaprop's Bookstore and Cafe in Asheville, N.C. "We have the petition
on the counter, and people are signing it without prompting. We've
collected hundreds of signatures."

The opposition spans left and right. The American Civil Liberties Union
has challenged the law in federal court, while some conservative groups
are also against it. Opponents include the American Conservative Union,
Americans for Tax Reform, Gun Owners of America, Phyllis Schlafly's Eagle
Forum, and Paul M. Weyrich's Free Congress Foundation.

Former Republican congressman Bob Barr -- a board member of the National
Rifle Association -- has been active in the fight against the Patriot Act.
In a telephone interview from his Georgia office, Barr said Section 215
"stands for the proposition that we don't have to abide by the old Fourth
Amendment standards that require the government to show that before we
gather evidence on someone there be a good reason to suspect the person
has done something wrong. The government now takes the position that it
can gather evidence on anyone it wants simply because it is fighting
terrorism. It poses a danger to the rights of free speech, political
expression, and assembly."

Reached at his office in Springfield, Va., Larry Pratt, executive director
of Gun Owners of America, puts it more bluntly: "We don't think the
government has any business grabbing hold of what people have been reading
or buying."

Librarians are especially incensed.

"Many librarians see this as a fundamental violation of user privacy and
First Amendment rights," says Leigh Estabrook, former dean of the Graduate
School of Library and Information Science at the University of Illinois at
Urbana-Champaign, now director of the university's Library Research
Center. "They are worried about the chilling effect, that people will be
reluctant to explore different kinds of resources from different points of
view. They're very concerned about the gag order. We as faculty have been
concerned what kind of assignments we give to students, lest their
investigations be considered terrorist activities."

Bernard Margolis, president of the Boston Public Library, says he might be
unable, in conscience, to comply with the gag provision. "I feel very
strongly about First Amendment rights," Margolis says. "If I were
presented with a Section 215 request, I would give very serious
consideration to informing my trustees about that request and consider
going public with it."

In a survey last fall of 465 public and 120 private libraries in Illinois
by the Library Research Center, seven public libraries reported that they
had received requests for information about patrons or circulation records
from the FBI, and 17 said other requests came from police or other
agencies. Eight said the reason given for the requests was a national
security investigation.

Though the survey did not ask whether a Section 215 order had been
presented, 14 libraries declined to answer some survey questions for fear
of violating the law. When asked whether they agree with the American
Library Association's 2003 statement that Section 215 is "a present danger
to the constitutional rights and privacy rights of library users," 90
percent of public libraries and 95 percent of private libraries said yes.

Some defenders of Section 215 are puzzled by the vehemence of the
opposition.

"There is this weird never-neverland, where the ACLU is insisting on an
illogically broad reading," says Viet Dinh, former assistant attorney
general and professor at the Georgetown University Law Center, who helped
write much of the Patriot Act. "I know English isn't my first language,
but I always thought a mandatory was modified by a conditional. The judge
will certify an application if it meets the requirements.

"Section 215 in and of itself is unobjectionable," Dinh insists. "The only
thing that makes it objectionable to people is the automatic
confidentiality provision. You could have a conversation on whether the
confidentiality is needed, but that's a conversation at the margins; it
doesn't justify the wholesale condemnation of the powers."

Philip B. Heymann, professor at Harvard Law School who was deputy attorney
general in the Clinton administration, does not find the opposition
surprising.

"In the area of access to records, there are always two concerns," Heymann
says. "One is that government will use the information for the wrong
purpose, particularly a political one. The other concern is that even if
government is as pure as Mother Teresa, people are going to be inhibited
in their activities. They will fear that the dirty book they take out will
become a government record. That paranoia factor has to be taken
seriously, and it is made much worse by not knowing whether records have
been subpoenaed. What they have substituted for showing that they are
conducting an investigation of an individual is showing that it's part of
a terrorism investigation. That leaves immense discretion to the FBI."

Heymann says that during the American Revolution, "we came to think of the
British government as an occupying power. One would have thought that once
we got rid of that power, we would trust our own government not to abuse
us. Instead, the Constitution could not be passed without [the Bill of
Rights], each amendment a guarantee against the newly chosen government,
led by George Washington. Americans have been like that ever since.
Suspicion of government is as American as apple pie."

David Mehegan can be reached at mehegan at globe.com.