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The Homeland Security Act

Patriot Act chills First Amendment freedoms

(ABC-CBN / January 22, 2003) - The US Department of Justice will not supply even the most general information concerning the use of its new surveillance powers. This attitude denies the American people basic information they need to provide meaningful guidance to the department.

The DOJ’s stance reflects the autocratic style of its chief, US Attorney General John Ashcroft. Soon after the general election, Ashcroft announced new internal guidelines for federal agencies faced with Freedom of Information Act (FOIA) requests. Any documents that fall into a gray area -- those not specifically mentioned in the FOIA as public documents -- can be withheld and the attorney general’s office will defend the agency’s refusal in court.

Since the FOIA was passed in 1967, it has been used by citizens, the media, watchdog organizations and special interest groups to leverage important information out of federal agencies about their operations. The FOIA has been a significant tool for citizen participation in their own governance. Some information released reluctantly through FOIA requests have forced changes in the way federal agencies were doing business.

The Act has been amended a number of times to give greater access to public documents. The Act contains a provision that allows a federal agency to refuse an FOIA request if national security interests are at stake. However, the Ashcroft memo limiting what can be released sweeps much further than the original national security provision.

In August the American Civil Liberties Union, the Electronic Privacy Information Center (epic), the Freedom to Read Foundation (FTRF) and the American Booksellers Foundation for Free Expression (ABFFE) filed an FOIA request asking the Justice Department -- in general terms -- how it has used the surveillance authority given under the USA Patriot Act.

President Bush signed the Patriot Act into law on October 26, 2001. This law gives sweeping new surveillance powers to both domestic law enforcement and international intelligence agencies while eliminating many checks that would give courts the authority to ensure these powers are not abused.

Under the Patriot Act, the FBI can force businesses and individuals to turn over their records on customers or clients. The government can go through citizens’ financial records, medical histories, Internet usage, commercial transactions and purchasing records. The act permits the FBI to spy on citizens’ reading habits using library and bookstore records.

The FBI does not have to show there is suspicion of criminal activity to conduct any of these surveillance. And the bureau can force those receiving search orders from ever disclosing the FBI’s actions.

It is clear the public needs to know just how these new powers are being used -- not details about what information the Justice Department had discovered, but how often these powers are being used.

More specifically, the FOIA request asked how often the FBI has monitored the communications of US citizens who are not suspected of any crime; how often the FBI has investigated people based on their activities that are protected by the First Amendment; and how often the FBI has ordered libraries, bookstores and Internet service providers to turn over information about their patrons or customers. None of these records would jeopardize national security or any ongoing investigation.

And in early September, in response to the FOIA request, both the DOJ and the FBI promised they would supply the information. The DOJ’s letter to the ACLU explained the department would comply because it is “a matter of widespread and exceptional media interest in which there exists possible questions about the government’s integrity which affect public confidence.”

By late October, however, no information had been disclosed by either agency. The organizations that had filed the FOIA request then filed a lawsuit in US District Court for the District of Columbia demanding a response from the government. In November, US District Court Judge Ellen Segal Huvelle ordered the government to respond to the request for information by January 15.

On that date, the government supplied 200 pages, most heavily redacted or blacked out so nothing can be read. None of the documents contained any of the information that had been requested.

In the letter accompanying the released pages, the Justice Department made it clear that it would not supply any further information based upon the August FOIA request without further litigation.

The Justice Department has erected a one-way mirror between itself and the American people -- department officials can look out, but Americans can’t look in. The Bush administration aims to gather more and more information on American citizens, but intends to share less and less of it with them.

Last month US Assistant Attorney General Daniel Bryant, following Ashcroft’s lead, declared in a letter to Sen. Patrick Leahy, D-Vermont, that Americans surrender their right of privacy when they buy books in bookstores or borrow them from libraries.

Rep. Bernard Sanders, I-Vermont, in response, plans to introduce a bill to amend the Patriot Act to eliminate this threat to an American citizen’s right of privacy involving an activity protected by the First Amendment.

Just as the First Amendment protects the freedom of speech and freedom of the press, it protects a concomitant freedom, the freedom to read. Without the freedom to read, there is no freedom of the press. There is no freedom of speech if the speaker can only exercise that right in an empty prison cell.

When a citizen is afraid government agents are watching what he or she is reading, that fear chills the person’s right to read. Would reading a book about revolution cause a person to be somehow suspect?

Would the FBI then snoop around the person’s workplace, question neighbors, intercept phone calls, monitor Internet usage? The bureau could. And, at this point -- because of the Patriot Act -- no court could stop the agency.

This is the new era the Patriot Act has brought us to.