The December 25 issue of Capital Times, a newspaper in Madison, Wisconsin, contains a warning about how the FBI, under Attorney General John Ashcroft and the USA Patriot Act, can order bookstores to provide lists of books bought by people suspected of involvement in terrorism.
The definition of terrorism in the USA Patriot Act is so broad and vague that any number of American readers may be caught in this additional Ashcroft dragnet. For example: You commit “the crime of domestic terrorism if [any of your acts] appear to be intended to . . . influence the policy of a government by intimidation.” Such “acts” could be based on what you read in a book.
From the Capital Times: “At A Room of One’s Own . . . which stocks women’s literature and women’s studies texts but also gay and lesbian erotica, owner Sandy Torkildson does not keep sales records by purchaser name, in order to protect her customers. ‘I think this is a real threat,’ she said.”
This threat was described in a November 1 letter to booksellers across the country by Chris Finan, president of the American Booksellers Foundation for Free Expression. This letter and its fears for the First Amendment have received hardly any mention in the press aside from the Capital Times and The Progressive magazine.
“[Under Section 215 of the USA Patriot Act] the director of the FBI may seek an order ‘for any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine activities.’
“The request for such an order is to be made to a judge who sits in a special court that is sometimes called the ‘spy court.’ ”
This is the secret court established by the Foreign Intelligence Surveillance Act (FISA). On its bench sit federal judges selected by the chief justice of the Supreme Court; they receive requests for subpoenas and warrants from federal agents engaged in investigating terrorism. In the 24 years since this court began functioning, hardly any request for a subpoena has been denied. I confirmed this during a recent debate in Washington with Viet Dinh, John Ashcroft’s chief legal adviser in the Justice Department.
Chris Finan’s letter to the country’s booksellers continues: “The judge makes his decision ‘ex parte,’ meaning there is no opportunity for you or your lawyer to object in court. You cannot object publicly, either. The new law includes a gag order that prevents you from disclosing ‘to any other person’ the fact that you have received an order to produce documents.” (Emphasis added.)
And this is the United States of America, John Ashcroft, attorney general—not the People’s Republic of China?
Chris Finan goes on: “American Booksellers for Free Expression is deeply concerned by the potential chilling effect of court orders issued to booksellers under this new law. Normally, when a bookseller receives a [court order] for customer information, he or she has the opportunity to ask the court to quash the order on First Amendment grounds. In several cases, booksellers have successfully resisted subpoenas. Under FISA, however, booksellers may not have this chance. Depending on the wording of the order, the bookseller may be required to immediately turn over the records that are being sought.” (Emphasis added.)
This is yet another moment in Ashcroft-Bush time when George Orwell should still be with us. Under Section 501 of the FISA, which has been amended in Ashcroft’s USA Patriot Act, this command to turn over the names of book buyers—and borrowers of library books—has a deceptive exception, which is also in the USA Patriot Act.
“Such investigation [as demanding library records] of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.”
The freedom to read is not protected by the First Amendment? Well, the semanticists at the Department of Justice have interpreted that phrase to mean that you—”a United States person”—are still protected by the First Amendment if you stand on a corner and make a speech. But if the FBI has a suspicion that you may be connected to international terrorism or clandestine intelligence activities, they can find out what you’re reading.
A Thomas Paine book advocating revolution, for instance?
So what can a bookseller do when the FBI comes calling? (Next week: advice to librarians.) Chris Finan tells bookstore owners, “You remain entitled to legal counsel. Therefore, you may call your attorney and/or the American Booksellers Foundation for Free Expression.
“Because of the gag order, however, you should not tell us that you have received a court order under the Foreign Intelligence Surveillance Act. You can simply tell us that you need to contact [our] legal counsel. . . .
“It may be possible for you to have a lawyer present during a search of your store records. If so, the lawyer will be able to help you ensure that there is no violation of the privacy of your other customers. However, it is possible that the FBI will demand immediate access to your records.
“If the agents are unwilling to permit you to contact your attorney, you should cooperate with them. Otherwise, you may be arrested for disobeying a court order. If you have no choice but to turn over your records, the best thing you can do is help the FBI find the information that it is looking for and thus avoid exposing the records of other customers.” (Emphasis added).
That is, if you can swiftly remove information about presumably “innocent” customers quickly enough.
Here’s a prelude to next week’s library warnings. The Capital Times quotes Barbara Dimick, director of the Madison Public Library. She says: “We want to be able to tell people who use the library that records are confidential, and they can use materials without fear of intimidation. That’s being usurped now by federal agents. . . . We’re all real jittery about it.”
Where are the newspaper editorials and reports on television and radio about this beheading of the First Amendment right to read?