- The Washington Times - Sunday, August 24, 2003

While Attorney General John Ashcroft and his Justice Department, along with the rest of the administrators, are the defendants in a number of lawsuits alleging violations of the Constitution, the first direct court challenge to a section of the USA Patriot Act has now been filed by the American Civil Liberties Union, in alliance with various Muslim, American-Arab and advocacy organizations. In addition to Mr. Ashcroft, the other defendant is FBI DirectorRobert Mueller.

The lawsuit focuses on Section 215 of the Patriot Act, a section that has already infuriated librarians around the country. Section 215 empowers the FBI to seize records andother”tangible things” from citizens and permanent residents, including the titles of books borrowed from the public libraries or bought in bookstores — along with names of their readers. In June, Mr. Ashcroft, testifying before the House Judiciary Committee, said that the omnivorous Section 215 can also be used to seize computerfiles,education records and even geneticinformation. Medical records can also be seized. The FBI does not have to inform targetsthattheir recordsarebeing seized. In addition, the FBI — despitetheFourth Amendment of the Bill of Rights — is not required to show “probable cause” that any of these people are suspected criminals or foreign agents.

To request an order from the secret Foreign Intelligence Surveillance Court — where only the government is allowed to appear — all the FBI must claim is that records and other “tangible things” are wanted to investigate foreign intelligence, clandestine intelligence or international terrorism. The secret court has little authority to reject these requests, and has turned down hardly any. As the ACLU points out, all the FBI has to do before the secret court is “specify that the records are ‘sought for’ an authorized investigation. The surveillance target may be completely innocent.” Again, this is not the Fourth Amendment’s “probable cause” standard.

Section 215 (which President Bush has not objected to) is chillingly reminiscent of the “general search warrants” that British customs agents used to obtain records and other personal property of the colonists at will. At least the British searches were not secret. In 1761, in a Boston courtroom, American Revolutionary politician James Otis warned the king of England that this kind of arbitrary search-and-seizure power would not long be endured by freeborn Americans who knew their rights as Englishmen.

Indeed,colonistsloudly protested this invasion of their privacy, and formed committees of correspondents to share information throughout the 13 colonies about the British government’s abuses. Thomas Jefferson was a principal organizer of such a committee in Virginia.

But now, our own government — when the FBI goes to a library or bookstore to find out what books are being read by whom — instructs the librarian or bookstore owner that, under Section 215, “no person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

This unprecedented order also applies to contacting the press. The librarian or bookstore owner cannot tell the local newspaper or radio or television station that the FBI has come to search their records. In 18th centuryAmerica,Samuel Adams and other patriots freely wrote in the Boston Gazette and other newspapers and pamphlets about the general search warrants and — as the Declaration of Independence was to assert — others of a “long train of Abuses and Usurpations” by “the King of Great Britain.”

But in 21st-century America, while those of us not subject to the gag order are indeed protesting Section 215, Department of Justice spokesman Mark Corallo tried to put a spin on it by telling the Bangor (Maine) Daily News on April 9 that, under the section, the FBI must show “there is probable cause that the person you are seeking the information for is a terrorist or a foreign spy.”

It ain’t so. Probable cause is not required.

The ACLU and the other plaintiffs are requesting that Section 215 be declared unconstitutional under the First, Fourth and Fifth amendments (the latter requires “due process of law” for taking property from American citizens). Mr. Corallo also incorrectly told Florida Today last Sept. 23, that “U.S. citizens cannot be investigated under this act.” He was referring to Section 215, which he said “is limited only to foreign intelligence.”

“Foreign intelligence” — like, what library books we read?

Even if there is no evidence against we citizens, who are indeed subject to Section 215.

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