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Jewish World Review Feb. 25, 2002 / 14 Adar, 5762

Nat Hentoff

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Consumer Reports

The FBI among the bookshelves


http://www.NewsandOpinion.com -- ONE of the least known sections of Attorney General John Ashcroft's U.S.A. Patriot Act, passed overwhelmingly by Congress, allows the FBI to demand from bookstores and libraries the names of books bought or borrowed by anyone suspected of "involvement in internal terrorism or clandestine intelligence activities."

The basis for this search is in Section 215 of the U.S.A. Patriot Act, which says that the director of the FBI may seek a federal court order for "any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against" terrorists.

Among the Act's broad definitions of domestic terrorism is "acts (that) appear to be intended to ... influence the policy of government by intimidation."

Such alleged "acts" could be based on what the suspect reads and follows in a book.

What causes great concern among librarians and bookstore owners is that once they turn the information over to the FBI, a gag order is imposed on the bookstore or library that prohibits them from disclosing "to any other person ... that the Federal Bureau of Investigation has sought or obtained tangible things under this section."

This means that the librarian or bookstore owner cannot call a newspaper or television reporter to say that the FBI has conducted the search.

Gag orders are occasionally imposed by judges on prosecution and defense attorneys, as well as the press, in certain cases where, for example, classified information may be part of the evidence or one of the witnesses might be endangered if his or her identity is revealed.

But, whenever that happens, the press can disclose that the gag order has been imposed and can contest it in open court. However, under this particular provision of the U.S.A. Patriot Act, there has never before, to my knowledge, been so rigid a gag order in First Amendment history.

The American Booksellers Foundation for Free Expression has sent a letter to booksellers across the country informing them of this section of the U.S.A. Patriot Act, and telling them that when the court order for a search is handed down, "the judge makes his decision 'ex parte,' meaning there is no opportunity for you or your lawyer to object in court."

And since the bookstore owner or librarian can't object to the press, can't he or she at least consult a lawyer after the search has been made? This is the advice of the American Booksellers Foundation for Free Expression - and also the advice librarians are getting for the American Library Association:

"You remain entitled to legal counsel. Therefore, you may call your attorney and/or (the Booksellers Foundation or, if a librarian, the American Library Association) and simply tell us that you need to contact our legal counsel. Because of the gag order, however, you should not tell us that you have received a court order."

This, mind you, is part of a law in the United States of America, not the People's Republic of China. Because of the chilling effect of this section of the U.S.A. Patriot Act, it's uncertain how many booksellers and librarians will even call a lawyer. And for those who do, it's difficult to predict how successful a court challenge will be in the present, and long-term, atmosphere of fear of shadowy terrorists among us.

After all, during the Second World War, some 120,000 Japanese-Americans, two-thirds of them citizens, were unjustly locked up in concentration camps for fear that being of Japanese ancestry, they would aid the enemy. The U.S. Supreme Court agreed, in one of the lowest points in its history, as judged by most historians of the Court. And at the time, there was little public criticism.

This time, because of the gag order, there will be even less public criticism because we will not know how often these searches are made - and what specific books are under suspicion. You might have some of those books in your home.

The U.S.A. Patriot Act does say that this pursuit of booklists cannot be conducted "solely upon the basis of activities protected by the First Amendment to the Constitution." What that actually means is that you are still protected by the First Amendment if you stand on a street corner and criticize John Ashcroft. But, if the FBI believes you are somehow connected to international terrorism or clandestine intelligence activities -- under the broad definition of the Act - they can find out what you've been reading. The gag order is indeed on the First Amendment.



JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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