Issue December 7, 2005

Patriot Act under review

The controversial post-9/11 legislation has supporters and detractors

As director of the Louisville Free Public Library, Craig Buthod trafficks in information.
Just don’t mistake him for a cop.

In January 2002, an FBI agent from Houston called asking for library records. Buthod asked the agent if his request was being made under the USA-Patriot Act and whether he had a court order.

“He said, ‘I’ll have to ask my supervisor and get back to you,” Buthod recalled. The agent never called back.
In the summer of 2003, a Louisville FBI agent visited the library, asking to see a list of books checked out by one of its members for use in a commercial fraud investigation. Buthod asked the agent if he had a court order. He didn’t, but threatened to subpoena Buthod to appear in a federal court in Buffalo, N.Y. A subpoena was never issued.

But if the U.S. Congress passes a tentative agreement reached last month regarding sunset provisions of the Patriot Act, Buthod could be fending off such inquiries for almost another decade.

On Nov. 17, House and Senate negotiators tentatively agreed to a draft bill that would make permanent more than a dozen highly contentious provisions of the act, which was passed in October 2001 to allow law enforcement broader powers in investigating terrorism.

A bipartisan group of six senators refused to vote on the draft, however, saying it did not do enough to protect ordinary citizens from unnecessary government surveillance. Congress is expected to take up the issue again this month.

Under the draft proposal, 14 of 16 provisions that were set to expire, or sunset, at the end of 2005 instead would become permanent, including sections that allow the government to continue demanding content from Internet service providers and cell phone companies without a person’s consent (Section 212) and expand the number of federal criminal offenses that are wiretap-eligible (Section 201).

Two other sections — Section 206, permitting the use of “roving” wiretaps that allow authorities to monitor a person’s communication on any device used, and Section 215, which allows the FBI to demand copies of a person’s library and business records — would expire after seven years.

But that timeframe does not ease Buthod’s mind.

“It’s a seven-year extension to what I consider a major threat to the right to read,” he said. He added that he’s in wait-and-see mode.

“I can only hope that they will recognize the privacy of what one reads,” he said. “It’s closely tied to the freedom of speech.”

Civil libertarians are most concerned about provisions they believe allow the government to spy on ordinary citizens in new ways; secret courts; and gag orders that prevent anyone who’s contacted in an investigation from disclosing that to the person being investigated.

Asked to comment on the Patriot Act, David Huber, U.S. Attorney for the Western District of Kentucky, issued a statement to LEO, saying the United States needs more leverage to win the war on terror.

“I do not see any reason why all of the act’s provisions should not be made permanent or extended,” he wrote.
In June 2004, the Patriot Act helped the government charge Nuradin Abdi, 32, originally from Somalia, who has been accused of plotting with an admitted al-Qaeda operative to blow up a Columbus, Ohio, shopping mall. Abdi had been in custody since November 2003 on immigration violations.

And in 2002, it helped authorities catch two Californians who are charged with conspiring to smuggle into the United States shoulder-fired, surface-to-air missiles designed to shoot down airplanes. Chao Tung Wu and Yi Qing Chen, both of Los Angeles, were indicted last month.

Roving wiretaps help police track terrorists who change the way they communicate when they move from location to location, Huber said. “Drug dealers and mobsters have long been subject to such roving wiretaps, so why exempt terrorists?”

“We need a strong arsenal of crime fighting tools to guard against individuals who wish our citizens harm,” Huber added. “The Patriot Act gives us the tools we need to fight terrorism while protecting the civil liberties we all cherish.”

As of Aug. 15, Huber noted, the U.S. Inspector General reported zero verified civil liberties violations of the Patriot Act.

In a statement to LEO, Rep. Anne Northup, R-Third District, said, “It would be a huge mistake to return to a pre-9/11 approach to fighting terrorism. The Patriot Act knocks down the wall between law-enforcement and intelligence-gathering agencies so they can work together to catch terrorists before they act. It does not intrude on the private lives of law-abiding U.S. citizens.”

But Rebecca Trammell, a lawyer and librarian at the University of Kentucky Law School who has studied the act, said it has allowed law enforcement to apply this legislation to drug and white-collar crime cases that have nothing to do with terrorism. She believes it’s time to reconsider legislation passed too swiftly in a tumultuous time.

“We’ve had an opportunity now, since 9/11, to discuss the act, to consider it with a great deal more care and thought than we gave to it in passing it originally,” Trammell said. “A failure to follow through on this is going to have some very extreme negative consequences for the administration.”

Otherwise, opponents will have to rely on court cases to challenge the law’s constitutionality, she said. One case library officials are watching closely involves George Christian, an employee of Library Connection, Inc., in Connecticut.

FBI agents served Christian with a national security letter this summer, ordering him to surrender “all subscriber information, billing information and access logs of any person” who have used a specific computer at one of the library branches, The Washington Post reported on Nov. 6.

Christian, who manages digital records for dozens of Connecticut libraries, refused the order, and Library Connection has since filed a lawsuit to protest the FBI’s demand publicly.

The Patriot Act also has opposition in conservative/libertarian circles. For example, Norman Davis, 58, president of the conservative coalition Take Back Kentucky, said he wouldn’t merely assume someone inside his house was conducting a secret search.

“If somebody’s in my home, and they haven’t taken the time to tell me, they’re liable to get shot. Period. If they want to know anything going on, all they have to do is knock on my door,” said Davis, a gun owner who objects to the mere thought of his name being put under scrutiny because he owns a firearm.

“If they want to fight terrorism, why do you want to read Americans’ e-mails, why do you want to restrict American freedoms? Who is this war really on, and what is it really for?”

Contact the writer at leo@leoweekly.com