The Patriot Act and Free Speech: The Fiction Behind National Security

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By Walter Brasch

Between a diner and an empty store that once housed a shoe store, video store, and tanning salon, in a small strip mall in Bloomsburg, Pennsylvania, is Friends-in-Mind, an independent bookstore.

On the first floor are more than 10,000 books on more than 1,200 running feet of shelves that create aisles only about three feet wide. On top of the shelves are stacks of 10, 15, even 20 more books. On the floor are hundreds more, stacked spine out three- or four-feet high. There are books in metal racks, drawers, and on counters. It's hard to walk through the store without bumping into a pile in the 1,000-square-foot store. In the basement, in reserve, are 2,000 more books.

"Sometimes I order four or five copies of a title, but often I only order one copy, but I want to have whatever my customers want," said owner Arline Johnson, who founded the store in 1976 after working almost two decades as a clinical psychologist and teacher. Unlike the chain stores with magazine and newspaper racks, wide aisles, track lighting, and even a coffee shop, Friends-in-Mind has only books and some greeting cards. Also, unlike the chain stores with large budgets for space and promotion to attract hundreds of customers a day, Johnson said she sees "on a real good day" maybe 25 or 30 people; often she sees fewer than a dozen.

In September 1984, she saw someone she didn't want to see. A week after the Naval Institute Press shipped three copies of Tom Clancy's cold war thriller The Hunt for Red October, the FBI showed up. The FBI, which apparently got the information from the publisher, "wanted to know where the books were and who purchased them," said Johnson. She said she told the two men that she couldn't remember to whom she sold two of the copies, but acknowledged she sent one copy to her cousin, who had served aboard a nuclear submarine "and had all kinds of clearances." Johnson said she wasn't pleased about the interrogation -- "and my cousin certainly wasn't happy about anyone checking on what he was reading."

The FBI never returned, but, occasionally, residents in this rural conservative community will complain about what's in the store. Johnson has been challenged for selling books about Karl Marx, gay rights, and even dinosaurs. She said she tells the "book police" that "it's important that people learn and read about everything, whether they believe it or not." She also stocks copies of the Constitution and the Federalist Papers. Left-wing. Right-wing. Business. Labor. Anti-establishment. Everything's available in her store. "It's not the government's job to tell me or anyone what they can read," she said.

But, with the passage of the USA Patriot Act, the government has decided that under the cloak of "national security" it can abridge the rights of citizens. The base is the Foreign Intelligence Surveillance Act (FISA). Under that act's provisions, the government may conduct covert surveillance of individuals only after seeking an order from a special government-created secret court. However, that court, in its first two decades, granted every one of the government's more than 12,000 requests.

The most recent series of intrusions upon civil liberties began in 1998 when special prosecutor Ken Starr demanded a bookstore to release records of what Monica Lewinsky had purchased. It was a sweeping move that had no reasonable basis of establishing any groundwork in Starr's attacks upon President Clinton. Since then, there have been several cases in which police, operating with warrants issued in state courts, have demanded a bookstore's records.

In state actions, individuals have the right to ask local and state courts to quash subpoenas for records. If denied, they may appeal all the way to state supreme courts. There is no such protection under FISA. Not only can't individuals and businesses be represented in that secret court, they're bound by a federal gag order prohibiting any disclosure that such an order was even issued. There is no recourse. No appeal.

Then came the USA Patriot Act, drafted by the Bush administration, and fine-tuned in secret by the House and Senate leadership following the September 11 terrorist attacks. The Patriot Act, which incorporates and significantly expands FISA to include American citizens, was overwhelmingly approved by the Congress, most of whom admit they read only a few paragraphs, if any at all, of the 342-page document. President Bush enthusiastically signed the bill on October 26.

Among its almost innumerable provisions, the act reduces judicial oversight of telephone and Internet surveillance and grants the FBI almost unlimited, and unchecked, access to business records without requiring it to show even minimal evidence of a crime. The FBI doesn't even need to give the individual time to call an attorney. Failure to comply immediately could result in that person's immediate detainment. The federal government can now require libraries to divulge not only who uses public computers but what books patrons check out, video stores to reveal what tapes or DVDs customers bought or rented, even grocery and drug stores to disclose what paperbacks shoppers bought.

The effect of the USA Patriot Act upon businesses that loan, rent, or sell books, videos, magazines, and music CDs is not to find and incarcerate terrorists -- there are far more ways to investigate threats to the nation than to check on a terrorist's reading and listening habits -- but to put a sweeping chilling effect upon Constitutional freedoms. The act butts against the protections of the First (free speech), Fourth (unreasonable searches), Fifth (right against self-incrimination), and Sixth (due process) amendments.

If the act is not modified, book publishers will take even fewer chances on publishing works that, like The Hunt for Red October, "might" result in government investigation; bookstore owners may not buy as many different titles; and people, fearing that whatever they read might be subject to Big Brother's scrutiny, may not buy controversial books or check books out of the library. Even worse, writers may not create the works that a free nation should read. How ironic it is that a president who said he wants everyone to read is the one who may be responsible for giving the people less choice in what they may read.

Chris Finan, president of the American Booksellers Foundation for Free Expression, believes "we've seen some shift" in the hard-core attitudes of the government's position. He believes public opinion will eventually shift "from the panic after September 11 to allow a reasonable debate of the dangers" created by the USA Patriot Act. The act has a built-in sunset provision -- several sections will expire, unless Congress renews them, on December 31, 2005.

Judith Krug of the American Library Association isn't as optimistic as Finan. "It's going to be used as long as they think they can get away with it," said Krug, one of the nation's leading experts in First Amendment rights and civil liberties. Krug said until the people "start challenging the act in the federal courts, we'll be lucky if we can 'sunset' out any of it."

In the meantime, Arline Johnson said she doesn't keep computer records, accept credit cards, or even have a store newsletter, all of which can compromise the Constitutional protections of her customers. "I once visited Bulgaria after teaching in Egypt," says Johnson, "and was taking tourist pictures in Sofia when I was stopped, accused of being a spy, and ordered to sign papers." She says she refused to sign "anything in a language I didn't understand." For the rest of her trip, she says she was closely followed by Bulgarian state police. "I don't like totalitarian regimes," says a defiant Johnson. "It makes no difference if it's a Balkan dictatorship or one created out of fear in a democracy. The Bush administration has put far more fear into the American people than any terrorist could."

As Benjamin Franklin once argued, a nation that gives up freedom to gain security deserves neither.

Walter Brasch, a former newspaper reporter and editor, is professor of journalism at Bloomsburg University. His most recent book is The Joy of Sax: America During the Bill Clinton Era.