Patriot Act stirs worry, but it's been little-used
By Raja Mishra, Globe Staff, 11/30/2003
boston.com
As Billerica Public Library director, Barbara Flaherty oversees a 120,000-book collection, including titles on war, Islam, terrorism, and guns.
After the terrorist attacks of Sept. 11, 2001, federal investigators received broad powers to check up on what the public is checking out. It's enough to give a librarian the jitters.
"We're big free speech, open access, First Amendment people," Flaherty said. "We understand why they're doing this, but it becomes another infringement on people's civil rights."
But how many US libraries have been searched by federal agents investigating terrorism? "Zero, none," said US Justice Department spokesman Mark Corallo.
The ongoing war against terrorism has exacerbated tensions between police powers and civil liberties, and much of the debate has centered on the USA Patriot Act, a law passed quickly after Sept. 11 that gives federal agents broad new investigative powers but worries civil libertarians, who fear zealous pursuit of terrorists will result in the trampling Americans' rights.
Compounding the fears, activities conducted under the Patriot Act are largely classified. That leaves an information vacuum, which can lead people to suspect domestic spying on civil rights activists, alleged communists, and others deemed subversive.
The Patriot Act has become a flashpoint in the Democratic presidential campaign. All the candidates have taken some exception to it, and criticism of the law -- which many of the Democratic office seekers voted for -- has become shorthand for supporting civil liberties.
John F. Kerry, who voted for the act, said Attorney General John Ashcroft has misused the law in ways that pose serious civil liberties issues. Wesley K. Clark has questioned whether the act's threat to privacy can be justified.
But what does the Patriot Act actually do? In essence, it expands the broad powers that the federal government has long possessed to investigate foreign spies to include anyone suspected of connection to terrorists.
The US Constitution's Fourth Amendment, which prohibits "unreasonable searches and seizures" without "probable cause," is the cornerstone of American civil liberty. Police must meet a high standard of proof that someone is likely involved in criminal activity before a judge will give them a warrant to search or seize their property or eavesdrop on their communications.
Not so for suspected spies. A 1978 law called the Foreign Intelligence Surveillance Act (FISA) allows agents to investigate anyone suspected of spying for a foreign government. Probable cause doesn't apply.
The Patriot Act goes further, allowing agents to bypass the Fourth Amendment in virtually any investigation with national security implications, not just those involving alleged foreign spies. Theoretically, a wide swath of Americans could be investigated with minimal judicial oversight.
The Justice Department argues that this expansion was necessary in an age where threats come from those unaffiliated with any foreign government. It says the Sept. 11 hijackers were members of Al Qaeda, a network tied to no government or country. "We had serious gaping holes in our ability to prevent terrorist attacks" before the Patriot Act, Corallo said.
Civil libertarians counter that the expansion was so broad and vague that virtually any American is vulnerable to intrusive searches and eavesdropping. "In the past the FBI has abused its power . . . we don't want them to abuse it in the future," said American Civil Liberties Union attorney Jameel Jaffer, who is arguing several court challenges to the act.
The secret imprisonment of those whom the Bush administration labels "enemy combatants" has generated much outcry by civil libertarians. But this practice has little to do with the Patriot Act; the power involved was given to US presidents long before Sept. 11.
Two parts of the Patriot Act have generated considerable debate.
The first is Section 213, which allows federal agents to search someone's property without notifying them.
"The government was required to tell a person that their home has been searched . . . that's no longer true under the Patriot Act," said the ACLU's Jaffer.
But Ashcroft, who has been defending the act in a series of public speeches, said during an August address in Boise that this provision was necessary because "if criminals are tipped off too early to an investigation, they might flee." In some cases, investigators have waited months to notify subjects of a search, though precise data about how the provision has been used are classified.
Another Patriot Act provision engendering much controversy, Section 215, allows federal agents to seize "any tangible thing" during an investigation. This means medical records, business records, library files, and any personal information.
"It's abominable. It's put us in a very difficult position," said Barbara Morgan, reference law librarian at the University of Massachusetts at Amherst.
Although this seems like a broad power, according to declassified Justice Department records, federal agents have not used it once since Sept. 11, 2001.
Investigators have visited about 50 libraries since that date, according to the Justice Department. But all of the visits occurred during investigations that did not involve terrorism or the Patriot Act. In many cases, the librarians themselves were the ones who contacted authorities to report suspicious activity, according to the Justice Department.
The Patriot Act also allows roving eavesdropping: Instead of monitoring the activity of a single phone number or Internet address, agents can tap into every phone and computer connection a suspect uses. Federal investigators have had this power in normal criminal cases since 1986. The Patriot Act extends this to national security investigations, where, unlike criminal cases, they face minimal judicial oversight.
In fact, many Patriot Act provisions were available to criminal investigators before it became law. The difference is that, under the act, agents don't have to prove probable cause to a judge to get a warrant to wiretap or search. Instead, they must seek permission from a special FISA court made up of a secretive panel of federal judges, which aren't bound by usual constitutional limitations.
Instead, they'll approve any request that clears FISA standards. Of 15,000 FISA search requests in the last two decades, judges have rejected only one.
It is the merging of criminal investigations and intelligence investigations "that is the crux of the Patriot Act," said Corallo, who noted that most of the law's provisions will expire in 2005. Still, at the Billerica library, Flaherty is skeptical of the need for such powers: "I don't know how many terrorists hang out at the library."
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