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Jewish World Review Sept. 16, 2003 / 19 Elul, 5763

Nat Hentoff

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'Hype, hysteria and the Patriot Act' | On his "victory" tour, John Ashcroft — explaining the "misinformation" spread by critics of the USA Patriot Act — appeared only before law enforcement audiences. He avoided the 158 towns and cities in 28 states that have passed deeply concerned resolutions claiming constitutional violations in the act.

At several stops in his less-than-dauntless defense of his prized legislation, Ashcroft has barred the print press from press conferences, speaking only to television reporters. Is he afraid of us? Why?

Ashcroft has supporters in the media, as evidenced in an Aug. 26 Washington Times editorial (on whose op-ed page I am given space every Monday, often to decode the revisions of the Bill of Rights in the Patriot Act that were rushed through Congress without public hearings).

The editorial ("Hype, Hysteria and the Patriot Act") focuses on Section 215 of the Act, which has alarmed librarians and many who use the libraries. It authorizes the FBI to get a list of book borrowers that might indicate any ties to terrorist activities. Readers under suspicion are not told they've been put in FBI files, and the law forbids the librarians to tell anyone, including the press, of the FBI's visit.

But The Washington Times editorial assures us that the FBI has to face many hurdles before they can go to the secret Foreign Intelligence Surveillance Court (also called FISA court) — where only government entities may appears. And there the government, says The Washington Times, in order to investigate an American citizen under the Foreign Intelligence Surveillance Act (FISA) "must show that he is knowingly engaged in terrorism or espionage."

In fact, the government only has to present the FISA court with the attorney general's certification that the search of the library's records furthers "an investigation to protect against international terrorism or clandestine intelligence activities." But this court has no authority to question the basis for the attorney general's certification. Without this essential authority, it cannot reject the certification as unfounded. So where's the judicial review?

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This standard is much lower than the Fourth Amendment's probable-cause requirement for a search. Moreover, on the basis of a hazy tip, the FBI could demand from the public library the names of all of those who had borrowed books on a particular subject — for example, the construction and vulnerabilities of electricity power grids. The FBI can potentially scoop up citizens who haven't even the remotest connection to terrorism.

In its editorial, The Washington Times points out that the FISA court standards are more restrictive than grand jury subpoenas for records. Those "are issued without prior judicial review or approval." Those are administrative subpoenas, but when issued by grand juries, they are limited to criminal investigations; are public; and are about a particular case and particular people. Section 215 of the Patriot Act, however, has no such limitations, since the judicial supervision by the FISA court is essentially perfunctory.

Regarding the unsupervised administrative subpoenas that are so convenient for government searchers, Ashcroft, during a television interview on "Fox News Sunday," cited a provision in his new Justice Department "Victory Act" legislation that would allow prosecutors to use administrative subpoenas in terrorism cases. The separation of powers, vital to our constitutional democracy, is already increasingly weakened by this administration, but will the awakening members of Congress say that this total removal of judicial review is going too far?

As for the huge gag rule imposed on librarians, The Washington Times emphasizes that secrecy is "uniquely important in anti-terrorism investigations."

But when such an investigation is based on mechanical, judicial supervision, and is conducted on unsubstantiated suspicions, the resulting impervious secrecy creates even more apprehension among Americans who use public libraries that they — simply because of the books they read — may be embedded in the records of the FBI.

It's no wonder that among the most vigorous critics of Ashcroft's ardent reductions of individual liberties are such conservative libertarian organizations as the Free Congress Foundation, the American Conservative Union, and the Eagle Forum.

Actually, the attorney general, unwittingly, has been educating a wide spectrum of Americans on how fundamental our constitutional liberties are to our freedom that we are fighting to secure. The ACLU may yet give him a Liberty Medal.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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