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
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
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
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.