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It's time to change Patriot Act
Sunday, May 01, 2005

Congress certainly has had its hands full lately, particularly with the pressing needs to protect the citizenry from the dangers of an independent federal judiciary and the House majority leader from an investigation into his ethics.

But time's running out on another issue, the USA Patriot Act. The sweeping consolidation of law-enforcement powers, passed in a fever shortly after Sept. 11, 2001, will expire at the end of the year unless Congress renews it.

The Bush administration has been pushing for renewal for some time now. Former Attorney General John Ashcroft spent hundreds of thousands of dollars promoting the act in speeches before restricted audiences.

Alberto Gonzales, Ashcroft's successor, has been thumping the Patriot Act tub in recent congressional hearings. Joining him are U.S. attorneys around the nation, including Mary Beth Buchanan who represents the Western District of Pennsylvania.

In her April 17 defense of the act in the Post-Gazette, she repeated Gonzales' testimony in insisting that all 16 provisions of the law be renewed.

Much of the law is aimed at making the prosecution of terrorists more effective, but one provision, Section 215, poses a serious threat to constitutional rights.

The section is so fraught with problems that a wide spectrum of groups and individuals has called for its elimination for several years.

This opposition includes Republicans and Democrats, libertarians and left-wingers and more than 200 municipalities nationwide, along with libraries, lawmakers, writers and lawyers.

One chief concern is that the government can get a search warrant for "business records" or "tangible things" such as books without proving probable cause that these items are linked to terrorists by petitioning a secret court established under the Foreign Intelligence Surveillance Act.

Last year, that court approved 1,754 of 1,758 requests for federal searches. The Fourth Amendment would seem to be in trouble here.

Another worry is that Section 215 makes it illegal for the targets of these searches to reveal them publicly, a clear First Amendment issue, and a problem when seeking legal counsel.

Finally, Section 215 makes anybody from "United States persons" to noncitizens fair game for secret searches regardless of terrorist suspicions.

In her boilerplate defense, Buchanan barely acknowledged the depth and seriousness of the opposition.

"I have heard wild assertions that Section 215 ... has enabled the federal government to record what library books law-abiding Americans read," she wrote. "Ironically, the word 'library' is not mentioned in any of the 157 provisions of the USA Patriot Act."

True, but the word "books" is used and where does one find a book? In a library, perhaps?

"The [Justice] department has not obtained a Section 215 order for library or bookstore records ...," says Buchanan, yet in his congressional testimony. Gonzales said:

"The Justice Department ... has confirmed that as recently as the winter and spring of 2004, a member of a terrorist group closely affiliated with al-Qaida used Internet service provided by a public library to communicate with his confederates."

How did the feds know this stuff was going on in public libraries unless it checked them out?

Alternatives to Section 215 in specific and the Patriot Act in general are being offered right now.

The Freedom to Read Protection Act, introduced in the U.S. House last month, is supported by the American Booksellers Association, the American Library Association, the Association of American Publishers and the PEN American Center.

The measure requires the government to show courts probable cause for searches.

In the Senate is the Security and Freedom Enhancement Act, endorsed by both Republicans and Democrats, which addresses the Patriot Act's broad surveillance and search authority.

Either would make a reasonable and constitutionally sensitive replacement for the troublesome USA Patriot Act.

First published on May 1, 2005 at 12:00 am
Post-Gazette book editor Bob Hoover can be reached at bhoover@post-gazette.com or 412-263-1634.
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