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State of surveillance
Let’s just throw away the Bill of Rights and the Constitution

IT WAS THE spring of 1998, and then–independent counsel Ken Starr, as usual, had sex on his mind. Specifically, he wanted to know whether Monica Lewinsky had bought the Nicholson Baker novel Vox at either of two Washington bookstores she’d visited. Starr’s theory of legal relevance was, to put it mildly, unorthodox. Lewinsky had supposedly engaged in phone sex with Bill Clinton. Vox has quite a bit about phone sex. Ipso absurdo ...

Like so much about the Clinton-Lewinsky affair and Starr’s outrageous investigation of it, the Vox incident continues to resonate in ways no one could have predicted at the time.

Today, proponents of the USA Patriot Act defend the notorious Section 215 provision — which allows federal investigators to obtain bookstore, library, video-rental, business, medical, and other records — by arguing that, surely, the government should have as many tools for pursuing terrorism cases as it has in probing other criminal matters. Such as drug-smuggling. Or, for that matter, the national menace posed by lying under oath about telephone-assisted masturbation.

Just last week, for instance, before Attorney General John Ashcroft’s pro–Patriot Act rally at Faneuil Hall, Michael Ricciuti, the anti-terrorism coordinator with the US Attorney’s Office in Boston, told reporters that prosecutors have always been able to procure such records in ordinary criminal cases by obtaining grand-jury subpoenas (see "The Ghosts of the Adams Family," This Just In, September 12). Why, he asked rhetorically, should terrorism investigations be any different? "This allows us to get the same information we can get in other cases," Ricciuti said. Satisfied that he had dispelled a myth perpetuated by critics of the Patriot Act, he added, "That’s the kind of analysis I welcome."

And yet the truth is that the Patriot Act shows what a long, dark road we’ve traveled down since Ken Starr was getting hot and bothered over Monica Lewinsky’s reading list. Consider:

• The subpoenas that Starr served on the two bookstores were issued by a grand jury, a system that is supposed to provide for at least some degree of oversight. (On the other hand, it’s kind of discouraging that Starr got what he wanted.) Under the Patriot Act, an investigator merely obtains a warrant from a special court created by the Foreign Intelligence Surveillance Act (FISA), passed in 1978 to keep tabs on foreign agents but now extended to cover American citizens as well. The FISA judge has virtually no authority to reject the warrant, and the agent seeking it need only offer vague assurances that it has something to do with terrorism — a considerably looser standard than "probable cause," the usual legal requirement.

• The Starr subpoenas were big news, as well they should have been. A Washington Post story at the time quoted Avin Mark Domnitz, executive director of the American Booksellers Association, as saying, "If the First Amendment means anything, it means we have the right to purchase books without fear the government will inquire into our reading habits." By contrast, the Patriot Act mandates secrecy. A bookstore owner told to turn over records may not tell anyone except another employee, and then only for the purpose of complying with the order. She may not tell the customer whose records have been seized, and she most certainly may not alert the media. She might not even be able to call her lawyer, although that’s not entirely clear.

• Subpoenas come with a deadline, and those on the receiving end may choose to fight them. The two Washington bookstores took Starr to court, and the matter was settled only after Lewinsky herself agreed to turn over her purchase records. Under the Patriot Act, if an FBI agent shows up with a warrant demanding records, a bookstore owner or librarian has to turn them over immediately. No deadline other than right now, no appeal, no questions.

Outside Faneuil Hall last week — where Ashcroft was stumping for the Patriot Act — Frank Kramer, owner of the Harvard Book Store, in Cambridge, spoke against the legislation and urged the 1000 or so protesters on hand to support efforts in Congress to repeal or soften some of its provisions. The day before, he had sent a message to the 15,000 customers on his e-mail list urging them to attend the rally — something he says he did only with great reluctance, since "they didn’t sign on to get the owner’s political diatribes." He made an exception, he adds, because "this is an issue that runs to the heart of bookselling and the First Amendment’s right to speak out and express your opinions in any appropriate way."

I asked Kramer whether he had been approached by federal authorities to turn anything over during the nearly two years since the Patriot Act was passed. "No. But if I had, I wouldn’t be allowed to tell you," he replied. In fact, Kramer is firmly convinced that if he were raided, he wouldn’t even be able to tell his lawyer. He jokes that an employee has told him that he should call his lawyer every morning to report that he hasn’t been approached by the FBI. That way, if some morning he doesn’t call, his lawyer could assume the worst.

Chris Finan, president of the American Booksellers Foundation for Free Expression, disagrees with that interpretation. "We believe that they can talk to a lawyer," he says of bookstore owners. Yet the very fact that there is any dispute over what should be the most basic of rights points to just how pernicious the Patriot Act really is.

THE USA PATRIOT Act is an immensely complicated piece of legislation that was passed by Congress in the weeks following the terrorist attacks of September 11, 2001. It stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." For the Bush administration, the red-white-and-blue acronym was surely worth the tortured language it required. How could anyone oppose something called the Patriot Act? Few did. It passed both branches of Congress by overwhelming, bipartisan margins, 356-66 in the House and 98-1 in the Senate. Both of Massachusetts’s liberal Democratic senators, Ted Kennedy and John Kerry, voted in its favor.

Some parts of the Patriot Act are simply a matter of common sense, and were long overdue purely for technological reasons. For instance, Patriot allows for so-called roving wiretaps — that is, wiretaps that follow an individual rather than a particular telephone, a logical shift in the cell-phone era. Provisions allowing for the monitoring of a person’s online computer activity are controversial, but they are actually more protective of privacy than the expansive powers that had previously been granted by courts in some jurisdictions.

The heart of the Patriot Act, though, strikes at some of our most basic liberties. "Sneak and peek," which allows the FBI to search a suspect’s home or any other property without notifying him until later. "National security letters," an even more secretive method of conducting no-warrant searches of personal records than Section 215. Section 411, which gives the government the authority to deport an alien for associating with a terrorist or terrorist group, even if said alien is completely ignorant of his friends’ activities.

In general, the Patriot Act makes it easier for the government to place and keep you under surveillance, to prevent you from knowing about it, and to reduce and in some cases eliminate the role of judges and grand juries in providing any oversight.

"There has never been — and I try not to engage in hyperbole — such a massive invasion of the Bill of Rights and the Constitution," says Village Voice columnist Nat Hentoff, author of the just-published The War on the Bill of Rights and the Gathering Resistance (Seven Stories). "This is serious stuff. And I’m under no illusions about Al Qaeda."

In particular, Hentoff worries that with no end in sight for the war on terrorism, an entire generation of Americans will grow up not understanding that they have fewer constitutional rights than their elders did.

"If, indeed, this war on terrorism is going to go on and on, and if they [terrorists] succeed in doing something else horrendous here, you’re going to have a generation growing up figuring this is the normal course of events," Hentoff says.

There are indications that that’s already happening. On the second anniversary of the terrorist attacks, the Associated Press reported the results of a poll it had conducted showing that 31 percent of respondents believed people’s legal rights had been violated in the course of investigating terrorism, and 58 percent believed they had not. The poll also showed that 51 percent "believe it will be necessary for average people to give up some individual freedom as part of the fight against terrorism."

But as the online magazine Slate noted in a recent four-part analysis of the Patriot Act, the law’s very secrecy casts such poll findings into doubt. Referring to a Fox News/Opinion Dynamics survey showing that 91 percent of registered voters reported the Patriot Act had not affected their civil liberties, Slate asked: "How could they know?"

The Slate series, by Dahlia Lithwick and Julia Turner, took an ambitious, objective look at the Patriot Act’s most contentious provisions in an attempt to determine precisely how the law has changed and how the federal government has made use of those changes. What it found was a mixed bag. The Patriot Act turned out not to be as dangerous as its most prominent opponent, the ACLU, would have it. Yet it is far from the benign updating of previous law that President Bush, Ashcroft, and company paint it as.

One important finding by Slate is that the Patriot Act has almost nothing to do with the beastly manner with which foreigners have been treated since 9/11. Lithwick and Turner write that "virtually all of the administration’s unprecedented abuse of aliens — the indefinite detentions, the blanket secrecy, the lack of charges, and the removal of aliens to secret military brigs — have happened absent any legislative authority." Seen in this context, the Patriot Act is just one of the Bush White House’s repressive tactics in fighting the war on terrorism.

Another — perhaps the most chilling — is that the drafters of the Patriot Act pre-empted much of the criticism that might have come their way by silencing their opponents in advance. Judicial oversight is swept away in some instances; in others, such as Section 215, it is reduced to ex parte proceedings, in which the government is the only party that gets to make its case. And if ordinary citizens themselves are being spied on, they would have no way of knowing it. Such secrecy could be useful in 2005, when some of the most controversial provisions come up for review. If citizens don’t know they’re being watched, they won’t complain. And if they don’t complain, then Congress presumably will be more inclined to renew those provisions.

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Issue Date: September 19 - 25, 2003
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