Big John Wants Your Reading List

During the congressional debate on John Ashcroft's USA Patriot Act, an American Civil Liberties Union fact sheet on the bill's assaults on the Bill of Rights revealed that Section 215 of the act "would grant FBI agents across the country breathtaking authority to obtain an order from the FISA [Foreign Intelligence Surveillance Act] court . . . requiring any person or business to produce any books, records, documents, or items."

This is now the law, and as I wrote last week, the FBI, armed with a warrant or subpoena from the FISA court, can demand from bookstores and libraries the names of books bought or borrowed by anyone suspected of involvement in "international terrorism" or "clandestine activities."

Once that information is requested by the FBI, a gag order is automatically imposed, prohibiting the bookstore owners or librarians from disclosing to any other person the fact that they have received an order to produce documents.

You can't call a newspaper or a radio or television station or your representatives in Congress. You can call a lawyer, but since you didn't have any advance warning that the judge was issuing the order, your attorney can't have objected to it in court. He or she will be hearing about it for the first time from you.

I have been told that at least three of these court orders have been served, but that's all the information I was given—not the names of the bookstores or the libraries. And I can't tell you my source.

Courts do infrequently impose gag orders preceding or during trials, and newspapers sometimes successfully fight them. But never in the history of the First Amendment has any suppression of speech been so sweeping and difficult to contest as this one by Ashcroft.

For example, if a judge places a gag order on the press in a case before the court, the press can print the fact that it's been silenced, and the public will know about it.

But now, under this provision of the USA Patriot Act, how does one track what's going on? How many bookstores and libraries will have their records seized? Are any of them bookstores or libraries that you frequent? Are these court orders part of FBI fishing expeditions, like Ashcroft's mass roundups of immigrants?

And if the FBI deepens its concerns about terrorist leanings after inspecting a suspect's reading list, how can everyone else know what books will make the FBI worry about us?

As one First Amendment lawyer said to me, "What makes this so chilling is that there is no input into the process." First there is the secrecy in which the subpoenas are obtained—with only the FBI present in court. Then then there is the gag order commanding the persons receiving the subpoenas to remain silent.

As I often do when Americans' freedom to read is imperiled, I called Judith Krug, director of the Office for Intellectual Freedom of the American Library Association. I've covered, as a reporter, many cases of library censorship, and almost invariably, the beleaguered librarians have already been on the phone to Judy Krug. She is the very incarnation of the author of the First Amendment, James Madison.

When some librarians—because of community pressure or their own political views, right or left—have wanted to keep books or other material from readers, Judy has fought them. She is also the leading opponent of any attempt to curb the use of the Internet in public libraries.

As she has often said, "How can anyone involved with libraries stand up and say, 'We are going to solve problems by withholding information'?"

I called to talk with her about the FBI's new power to force libraries to disclose the titles of books that certain people are reading—and she, of course, knew all about this part of the USA Patriot Act. And the rest of it, for that matter.

She told me how any library can ask for help—without breaking the gag order and revealing a FISA visit from the FBI. The librarian can simply call her at the American Library Association in Chicago and say, "I need to talk to a lawyer," and Judy will tell her or him how to contact a First Amendment attorney.

The reason the president and the attorney general have so far been able to trade civil liberties for security is they know from the polls that they can count on extensive support. Most Americans are indeed willing to forgo parts of the Bill of Rights for safety.

Only by getting more and more Americans to realize that they themselves—not just noncitizens—can be affected by these amputations of the Bill of Rights will there be a critical mass of resistance to what Ashcroft and Bush are doing to our liberties.

Accordingly, the press ought to awaken the citizenry not only to the FBI's harvesting lists of what "suspect" Americans read, but also to the judicial silencing of bookstores and libraries that are being compelled to betray the privacy and First Amendment rights of readers.

I would welcome any advice from civil liberties lawyers on ways to counter both this provision of the USA Patriot Act and the gag order, which is the sort of silencing you'd expect of China or Iraq. Remember the repeated assurances by the president, the attorney general, and the secretary of defense that any security measures taken in the war on terrorism would be within the bounds of the Constitution?

George Orwell said: "If large numbers of people believe in freedom of speech, there will be freedom of speech even if the law forbids it. But if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them."

Today, the public doesn't even know about this provision in the strangely titled USA Patriot Act. A lot of people are still afraid to get on a plane. Is Ashcroft fearful that if people find out about his interest in what they're reading, they'll be afraid to go to libraries and bookstores—and will start asking questions about what the hell he thinks he's doing? And where is Congress?

Geez, curtains on 60+ year old statues, and now FBI snooping at our library reading lists and bookstore purchases.

I'm sorry, but maybe the folks who voted for the corpse knew something we don't...

Oh please. These goofy lefties are totally out of the loop of reality. They keep focusing on "libraries." Try your credit card bills, and store tracking of your puchases via laser codes.

You know Shermy, I might almost agree with you, except for one thing

That being, what would your response be if it had been Reno who pushed for this instead of Ashcroft?

Seriously. Aside from the ideology Messenger of this article, it does make some valid points. Care to address any of those points? This is waaaaaaaaaaaaaaaaaay more of an assault on the First Ammendment than CFR could ever be, and CFR sucks pretty bad.

While I'm quite pleased with Ashcroft and his stance on the 2nd Amendment, I must admit that this "PATRIOT" Act does wipe it's arse with the 4th and 5th Amendments. All in the name of "national security", don't you know. Such powers, once assumed by government, are difficult, if not impossible to revoke short of bloody revolution. Ooops... that statement probably put me on the list right there.

On the other hand, I have a question for Nat: "So, Nat, how do you feel about the right to keep and bear arms"?

Finding out who's reading what is not an assault on the First Amendment rights of the readers. It might be an assault on their Fourth and Fifth Amendment rights, if done improperly. It certainly seems to be an assault on the First Amendment rights of the bookstore or library. Why doesn't somebody put it to the test, by coming out and saying that they'd received such a request? I would.

I wrote: It certainly seems to be an assault on the First Amendment rights of the bookstore or library.

By that I meant that the automatic gag order is an assault on their First Amendment rights.

"Finding out who's reading what is not an assault on the First Amendment rights of the readers"

It could be. Some First Amendment cases turn on the "chilling effect." Knowing that readers could get in trouble for reading your stuff, could "chill" the purchase of your work. You are being silenced in-directly. parsy.

That's a good question. Considering that we have been told that this "war" could last 5 - 10 years (or more), the Patriot Act may well be with us for a long time to come.

The publics memory is short lived. In ten years we will all forget about these provisions, then the double-double secret hush hush stuff will go on....

That's still not an assault on the reader's rights. As for the writer, I think the government would have to publish a "suspicious works" list for that to apply. I don't believe they've done this, yet.

Don't get the idea that I'm condoning this. I'm not. I just want to be clear on what the problem is.

As long as they go in with the name of a suspect and look at the books he bought/read I have no problem with it. Now if they go on a fishing expedition where they want the names of everyone who bought/read a certain book then they have gone way too far.

"As for the writer, I think the government would have to publish a "suspicious works" list for that to apply."

I think that is how they plan to do it. Take for a hypo, a book called "9-11: A Lesson in Social Justice" by Alfred Kayda. The FBI goes to the library and checks out the name of everybody who checked it out or bought it. In wartime, this is probably a legitimate snoop. But, 10 years down the road, suppose the book is "Repair Your Own Handgun" by Charlie Heston---or 20 years down the road, "Bringing Jesus to Homosexuals" by Ronnie Rightwing?

I can see this stuff escalating very easy thru criminal and reprehensible behavior stuff.

That's a good question. Considering that we have been told that this "war" could last 5 - 10 years (or more), the Patriot Act may well be with us for a long time to come.

The publics memory is short lived. In ten years we will all forget about these provisions, then the double-double secret hush hush stuff will go on....

This "war" is a real war with the potential threat of devestating consequences at home. We have little choice but to pursue our defense very aggressively. In fact, with more vigor than we are currently showing. War is war and I'm sorry that Congress weaseled and did not make a clear declaration. We may pay for that because of defensive measures not taken.

I can see this stuff escalating very easy thru criminal and reprehensible behavior stuff.

Of course! It's easy to see it being used in nefarious ways even now, since terrorism itself inhabits the interface between crime and politics. But of all the rights violations I see--and there certainly are some--I still don't see a violation of the First Amendment where the reader is concerned. Fourth and Fifth, maybe, but it depends how it's applied.

The big First Amendment issue here is the automatic gag order on the libraries and bookstores. It's probable that Ashcroft is investigating suspects. It's also possible that he's going fishing, but with the gag order we can't tell. I think somebody should flout the gag order and let the court decide how far Ashcroft can go.

If the FBI expropriates my private records and I am not allowed to SPEAK OUT against it in the press, my First Amendment right has been denied. The unpatriotic "Patriot" Act violates practically ALL the Ten Amendments in one way or another.

Why should Nat Hentoff -- or anyone else -- be able to tell me I can't see public records kept by public libraries paid for by public funds? What's next? A privacy claim for decisions made by the city council? A privacy claim by child porn users and distributors using public libary computers? A privacy claim by city auditors for the city's accounts? A privacy claim by the DNC for soft money contributions? Why is it that liberals want to hide everything from me? Makes me uneasy -- and suspicious. I say public records should be available to anyone who wants to see them -- not just law enforcement and liberal librarians.

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