Powers of Patriot Act in Eye of the Beholder

The USA Patriot Act, overwhelmingly approved by Congress after the Sept. 11 attacks, is going through a national checkup triggered by lawsuits, grass-roots pressure and other factors.

Civil liberties groups are decrying its operation. Members of Congress are having second thoughts. The Bush administration and the Justice Department are defending their record in enforcing it.

But despite the growing and widespread debate, there remains confusion about what the law exactly does and does not do. With the passage of time since the Sept. 11 attacks, interest groups and others are scrutinizing the law and questioning whether certain provisions are too broad or are really necessary.

In the process, the Patriot Act has become a kind of a symbol of the war on terrorism, with vices and virtues ascribed to it that, in some cases, are wrong.

Few groups have raised their voices louder in the debate than the nation’s librarians.

Across the country, library groups and booksellers have been attacking a section of the terrorism-fighting law that gives federal agents new powers to obtain patrons’ reading records. Previously, they could get library records only through a grand jury as part of a criminal investigation. Under the Patriot Act, those records, and many others, may also be obtained by the government in intelligence investigations through a secret tribunal known as the Foreign Intelligence Surveillance Court, where the standard of proof is lower than in criminal cases.

The American Library Assn. has mounted a lobbying blitz, saying the reading habits of ordinary Americans are being threatened. Members of Congress have introduced legislation to amend the law and kill the offending provision.

“The threat of terrorism must not be used as an excuse by the government to intrude upon our basic constitutional rights,” Rep. Bernard Sanders (I-Vt.) said in introducing one such bill earlier this year. The legislation, he added, will “protect libraries, bookstores and their patrons from unjustified government surveillance.”

But evidence seems to indicate that the problem is less dire. Librarians and their supporters point to a study that shows that law enforcement officials have visited libraries hundreds of times since the attacks. What they don’t say is that the same study shows that the number of such visits was actually higher in the year before the attacks.

In the past, the government has obtained library records in cases such as the Zodiac gunman investigation in New York in the early 1990s and the Gianni Versace murder case in Florida. Without providing details, officials say they recently obtained a subpoena targeting a bookseller to obtain records showing that a suspect in a domestic terrorism case had purchased a book giving instructions on how to build a detonator that had been used in several bombings.

The Justice Department cites these and other examples as the sorts of misperceptions that are undermining support for the 2-year-old law, and the war on terrorism, although the department appears to create some misperceptions of its own.

Kicking off a speaking tour last month to shore up support for the Patriot Act, U.S. Atty. Gen. John Ashcroft highlighted a case out of the Pacific Northwest, where a local deputy sheriff tipped off a special terrorism task force and helped crack a suspected terrorist cell in the region. What isn’t stressed is that local officials have been helping their federal counterparts for years, and the terrorism task force was created well before the Patriot Act became law.

Some of the most controversial steps the government has taken after the Sept. 11 attacks have nothing to do with the law, including its decision to round up and deport hundreds of illegal immigrants.

The case of alleged “dirty bomb” plotter Jose Padilla -- an American citizen whom federal agents arrested in Chicago and are holding in a military prison without a lawyer or formal charges -- strikes many legal scholars as the most dubious of the government’s post-Sept. 11 moves.

“That is phenomenally outrageous and unprecedented -- and not in the Patriot Act at all,” says James X. Dempsey, the executive director of the Center for Democracy & Technology, a civil liberties group.

Other provisions that are being attacked have yet to be fully deployed.

In a report last week aimed at dispelling misperceptions allegedly created by the Justice Department about the Patriot Act, the American Civil Liberties Union warned that the law’s definition of “domestic terrorism” is so broad that it covers the activities of political organizations.

The ACLU says it isn’t aware of any case in which the law has been applied that way. The provision it is concerned about applies only to people who violate state or federal criminal law and who engage in conduct that “endangers human life,” among other requirements.

Jameel Jaffer, an ACLU staff attorney in New York, said that his group does not condone that sort of violence and that the provision is “not something that is an immediate concern to us as an organization.” But he added that the definition is so vague that, in the hands of the wrong prosecutor, it could end up ensnaring political protesters, including those working for antiabortion groups or certain environmental organizations. Others have said that it could include people who block traffic or climb a fence at a nuclear power plant.

One reason for all the confusion is the sheer complexity of the legislation -- more than 300 pages of mind-numbing amendments to various federal statutes. In reality, some experts say, much of it is decidedly un-revolutionary.

“Most people have this idea that [the Patriot Act] is a huge, monolithic charter. But you get down to brass tacks, there isn’t that much to it, really,” said William C. Banks, a professor at Syracuse University College of Law and coauthor of a popular national security law text. “There are a few, maybe a half-dozen controversial provisions, some of which I think are quite problematic.

“It seems like it is a very thin debate on both sides. I have always reacted to the Patriot Act -- from its name to its implementation -- as something almost cartoon-like.”

Another problem is that the Justice Department refuses to release basic information about how it is implementing the law, making it hard to analyze the measure’s performance.

One of the most contentious sections of the Patriot Act -- known as Section 215 -- makes it much easier for federal agents to obtain information about people in the course of terrorism investigations.

The department has declined to detail the number of times the provision has been used, saying the information is classified. The Patriot Act requires that Congress be given such information, although that is on a classified basis too. The lack of disclosure has critics assuming the worst.

One thing the Patriot Act does is allow for greater sharing of information between criminal investigators and those who investigate spies and other foreign threats. The functions have been separated since disclosures in the 1970s showing that the FBI and others were abusing their intelligence powers to snoop on political dissenters and other alleged undesirables.

After Sept. 11, the administration argued that the separation of powers was impeding the ability of the government to capture terrorists, and the law was changed. But how the change has worked in practice is far from clear.

In his speech that mentioned the breakup of the alleged cell in Portland, Ore., Ashcroft said that “the Patriot Act’s elimination of the wall was critical in allowing all of the dots to be connected, and the criminal charges to be fully developed.” The so-called “Portland Six” case was launched after a deputy sheriff in rural Washington state called the FBI after spotting a group of men of Middle Eastern descent with a cache of automatic weapons target-shooting at a gravel pit. One of the men has pleaded guilty, one remains a fugitive, and charges are pending against the others.

A Justice Department spokesman declined to elaborate about how the intelligence and criminal investigators actually connected the dots. He acknowledged that nothing barred local officials from talking to federal investigators before the Patriot Act was enacted. He noted that Ashcroft did not say directly that the Patriot Act first permitted such cooperation or was responsible for the terrorism task force being created.

But some lawyers in the Portland case question whether the Patriot Act has been as big a help to the government as Ashcroft suggests.

Much of the government’s case, for example, is built around the testimony of a confidential government informant -- “the good, old-fashioned way that law enforcement has worked for eons,” said Jack Ransom, a former federal prosecutor who represents one of the Portland defendants.

The librarians, meanwhile, say their fears are justified by history, if not statistical evidence. In the 1970s, the FBI had a program of keeping tabs on readers from the former Soviet Union and other countries, pressuring major university libraries to provide information about reading habits. The concern is that history is repeating itself.

The study cited by the librarians and their boosters, which was conducted by the library research center at the University of Illinois, suggests the opposite. It found 10.7% of the libraries responding to the study had received requests for information from the FBI and other law-enforcement officials in the year after Sept. 11. That compares with about 13.8% that received requests in the year before Sept. 11.

The Patriot Act includes a provision that bars libraries from disclosing whether they have received requests from the FBI and, in the survey, some of the libraries acknowledged that they did not answer because they were legally prohibited from doing so. But the number still wasn’t high enough to reverse the trend of declining requests.

“We do not have data to show it is a big problem,” the study’s author, Leigh S. Estabrook, said in an interview.

The American Library Assn. says more research is needed before it will be convinced that there is not a problem. In any event, it says that the Justice Department could easily placate librarians’ fears by disclosing the number of actual visits that the FBI has made to libraries using the Patriot Act. So far, the department has declined to do so.

“If the attorney general has that information ... why does he not share it?” said Emily Sheketoff, executive director of the library association’s Washington office.

“We want to believe that the FBI has been aboveboard, and doing all the right things, but library history teaches us that this is not necessarily so,” she said. “I don’t want to say that the study is no good. It may be bang-on. We just don’t know for sure.”