During the congressional debate on John Ashcroft’s USA Patriot Act, an American Civil Liberties Union fact sheet on the bill’s assaults on the Bill of Rights revealed that Section 215 of the act “would grant FBI agents across the country breathtaking authority to obtain an order from the FISA [Foreign Intelligence Surveillance Act] court . . . requiring any person or business to produce any books, records, documents, or items.”
This is now the law, and as I wrote last week, the FBI, armed with a warrant or subpoena from the FISA court, can demand from bookstores and libraries the names of books bought or borrowed by anyone suspected of involvement in “international terrorism” or “clandestine activities.”
Once that information is requested by the FBI, a gag order is automatically imposed, prohibiting the bookstore owners or librarians from disclosing to any other person the fact that they have received an order to produce documents.
You can’t call a newspaper or a radio or television station or your representatives in Congress. You can call a lawyer, but since you didn’t have any advance warning that the judge was issuing the order, your attorney can’t have objected to it in court. He or she will be hearing about it for the first time from you.
I have been told that at least three of these court orders have been served, but that’s all the information I was given—not the names of the bookstores or the libraries. And I can’t tell you my source.
Courts do infrequently impose gag orders preceding or during trials, and newspapers sometimes successfully fight them. But never in the history of the First Amendment has any suppression of speech been so sweeping and difficult to contest as this one by Ashcroft.
For example, if a judge places a gag order on the press in a case before the court, the press can print the fact that it’s been silenced, and the public will know about it.
But now, under this provision of the USA Patriot Act, how does one track what’s going on? How many bookstores and libraries will have their records seized? Are any of them bookstores or libraries that you frequent? Are these court orders part of FBI fishing expeditions, like Ashcroft’s mass roundups of immigrants?
And if the FBI deepens its concerns about terrorist leanings after inspecting a suspect’s reading list, how can everyone else know what books will make the FBI worry about us?
As one First Amendment lawyer said to me, “What makes this so chilling is that there is no input into the process.” First there is the secrecy in which the subpoenas are obtained—with only the FBI present in court. Then then there is the gag order commanding the persons receiving the subpoenas to remain silent.
Has John Ashcroft been reading Franz Kafka lately?
As I often do when Americans’ freedom to read is imperiled, I called Judith Krug, director of the Office for Intellectual Freedom of the American Library Association. I’ve covered, as a reporter, many cases of library censorship, and almost invariably, the beleaguered librarians have already been on the phone to Judy Krug. She is the very incarnation of the author of the First Amendment, James Madison.
When some librarians—because of community pressure or their own political views, right or left—have wanted to keep books or other material from readers, Judy has fought them. She is also the leading opponent of any attempt to curb the use of the Internet in public libraries.
As she has often said, “How can anyone involved with libraries stand up and say, ‘We are going to solve problems by withholding information’?”
I called to talk with her about the FBI’s new power to force libraries to disclose the titles of books that certain people are reading—and she, of course, knew all about this part of the USA Patriot Act. And the rest of it, for that matter.
She told me how any library can ask for help—without breaking the gag order and revealing a FISA visit from the FBI. The librarian can simply call her at the American Library Association in Chicago and say, “I need to talk to a lawyer,” and Judy will tell her or him how to contact a First Amendment attorney.
The reason the president and the attorney general have so far been able to trade civil liberties for security is they know from the polls that they can count on extensive support. Most Americans are indeed willing to forgo parts of the Bill of Rights for safety.
Only by getting more and more Americans to realize that they themselves—not just noncitizens—can be affected by these amputations of the Bill of Rights will there be a critical mass of resistance to what Ashcroft and Bush are doing to our liberties.
Accordingly, the press ought to awaken the citizenry not only to the FBI’s harvesting lists of what “suspect” Americans read, but also to the judicial silencing of bookstores and libraries that are being compelled to betray the privacy and First Amendment rights of readers.
I would welcome any advice from civil liberties lawyers on ways to counter both this provision of the USA Patriot Act and the gag order, which is the sort of silencing you’d expect of China or Iraq. Remember the repeated assurances by the president, the attorney general, and the secretary of defense that any security measures taken in the war on terrorism would be within the bounds of the Constitution?
George Orwell said: “If large numbers of people believe in freedom of speech, there will be freedom of speech even if the law forbids it. But if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.”
Today, the public doesn’t even know about this provision in the strangely titled USA Patriot Act. A lot of people are still afraid to get on a plane. Is Ashcroft fearful that if people find out about his interest in what they’re reading, they’ll be afraid to go to libraries and bookstores—and will start asking questions about what the hell he thinks he’s doing? And where is Congress?