A question of balance
When national security is on the line, how far should we go to protect civil liberties?

by Barbara McKenna

Like the canary in a coal mine, librarians often are the first to signal danger when some of democracy's  freedoms are threatened.

One day in fall 2001, while the still smoldering World Trade Center and anthrax-laced letters monopolized the headlines, it was threats to the average citizen's free expression and privacy rights that concerned Temple University librarian Maureen Pastine. She had just learned that two FBI agents were in her library, trying to get access to an employee's computer.

Rather than asking for her, or the director of computer and information services, or the university's counsel, the agents had shown up on campus at lunchtime and enlisted two young workers--probably students, Pastine suspected--to help them make a copy of the hard drive. The agents told the workers they were investigating the presence of the word "anthrax" in the subject field of one of the librarian's e-mails. But they coached the workers to tell anyone who asked that they all were attending to a computer virus.

This plan fell apart when the FBI search party got to the door of the librarian's office. It was locked because he was at lunch. Another passing employee asked a few questions and the head librarian was called.

 Pastine, who currently is on the board of the American Library Association (ALA), tries to keep up on all matters affecting the rights of library users. In fact, earlier that week she had been boning up on the law in context to a bill before Congress--which eventually would become the USA Patriot Act. She had even e-mailed information about the implications of the legislation to one of the attorneys in the university counsel's office. Once she learned that the FBI agents had no court order, subpoena or search warrant, Pastine and the university counsel asked them to leave.

The story does not end there, however. At a January 2003 meeting of the ALA, Pastine was confronted by a man who overheard her telling another librarian about the visit. He asked if she wasn't violating the law by even discussing the FBI encounter. The USA Patriot Act forbids librarians to discuss their contacts with federal agents or even indicate when they have occurred. Pastine pointed out that the incident happened several weeks before President Bush signed the bill. "Are you an FBI agent?" she asked the man. He said he was.

Pasteen uses this story as a cautionary tale now when she talks to colleagues either on campus or at national meetings. It illustrates the importance of librarians being current with laws affecting their work. But it also shows the increasingly restrictive environment in which libraries and universities are operating today.

Such contacts may not be widespread, but a study by Leigh Eastabrook at the University of Illinois Graduate School of Library and Information Science, raises some questions. Eastabrook surveyed 1,505 public libraries in October 2002. Ten percent acknowledged receiving visits from law enforcement officers in the prior year. Because the Patriot Act makes it a felony for librarians to disclose such visits, the ALA believe that the actual number of visits is far greater, says Deborah Caldwell-Stone, deputy director of the ALA Office for Intellectual Freedom.

"Libraries are on the frontlines," Pastine says. "We feel that in a free society, in a democracy, people's First Amendment rights should be protected. They should have the freedom and privacy to read and look things up, to be educated, to get information on all sides of an issue, to make up their own minds. Our country was built on these ideals. They are sacrosanct."
 

The sweeping powers of the USA Patriot Act

Within weeks of the Sept. 11 attacks,  the Bush administration and Attorney General John Ashcroft put together an omnibus anti-terrorism bill that would give the executive branch heightened powers to fight terrorism.

The bill's full title is "The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act"--the USA Patriot Act. President Bush signed it into law on Oct. 26, 2001.

The Patriot Act gives the Justice Department broad information-gathering and surveillance capabilities. It can collect sensitive private data on individuals, eavesdrop on telephone conversations, monitor computer use and detain suspects without probable cause--all with reduced judicial oversight. These powers are not limited to terrorism investigations, but can be extended to all federal investigations.

As with other emergency legislation passed at times of national crisis--the Alien and Sedition Acts of the 1790s, Abraham Lincoln's suspension of habeas corpus during the Civil War, the suppression of free speech during World War I, for example--the Patriot Act raises constitutional questions. In particular, some constitutional experts say it challenges the First, Fourth, Fifth, Sixth and 10th Amend  ments. But its overall purpose is an essential one in the aftermath of the enormous loss of life and property wrought by the terrorist attacks. It is "to deter and punish terrorist acts in the United States and around the world" and "to enhance law enforcement investigatory tools."

In the 18 months since the bill's passage, civil libertarians have become increasingly worried that some of the measures of the Patriot Act take away far more in the way of cherished rights than they provide in the way of security--and they may not even be necessary. In her well-publicized letter to FBI director Robert Mueller, FBI special agent Colleen Rowley noted that the government had the authority it needed to investigate terrorist Zacarias Moussaoui before Sept. 11. It just didn't exercise it.

Yet the mood at the time, as the carefully named legislation suggests, was to support the president in a period of crisis. Unfortunately, this may have induced Congress to enhance powers for the executive branch to a degree that many civil libertarians warn is excessive, if not dangerous, to our system of government.

An atmosphere of secrecy

For example, a lack of disclosure and openness marked the process by which the bill was passed. In Insatiable Appetite: The Government's Demand for New and Unnecessary Powers After September 11, a report from the American Civil Liberties Union, the reader gets a sense of the whirlwind process that rushed the Patriot Act into law.

A week after the terrorist attacks, the attorney general transmitted an omnibus anti-terrorist proposal. It included expanded wiretap authority, the power to detain suspicious immigrants indefinitely and without charge, powers enabling the Justice Department to get financial and other records without having to secure a warrant and show probable cause, and so on. Ashcroft wanted the bill voted on within three days.

Both the House and Senate Judiciary Committees convened hearings on the bill, but they were abbreviated and Ashcroft could only give them an hour. In the Senate, the bill went to the floor without a committee vote and Majority Leader Tom Daschle (D-S.D.) sought unanimous consent to get the bill through without amendment. Only Sen. Russ Feingold (D-Wis.) protested, offering several amendments that did not pass. His vote against the bill was the only opposition in the Senate.

In the House, a Republican-led Judiciary Committee took the trouble to add amendments that would protect some civil liberties. However, the night before the bill was to come up for a vote, the administration persuaded the committee to accept a revision of the bill that reinstated amended features. "Final passage of the 342-page legislation took place just as the anthrax scare paralyzed Congress," Insatiable Appetite notes. "Most members of Congress had no access to their offices and no opportunity to read the bill." In the frantic environment, the ACLU adds, the civil libertarians' critiques were ignored.

Three months ago, another anti-terrorism bill surfaced. Although the administration had denied it planned to seek additional Patriot Act powers, in February draft legislation prepared by the Department of Justice was leaked to the Center for Public Integrity. "The Domestic Security Enhancement Act," dubbed "Patriot 2," goes further than the Patriot Act in the areas of government surveillance, wiretapping, detention and prosecution. Where the first Patriot Act allows the secret detention of noncitizens, Patriot 2 would allow the indefinite and secret detention of anyone--i.e., American citizens-- picked up in connection with a terrorist investigation. The bill even allows the U.S. government to strip an American of his or her citizenship.

Administration critics have warned that the atmosphere of secrecy that surrounded the writing of these bills undermines the basic democratic principle of open government. It also raises questions about the system of checks and balances that is the cornerstone of our government's three-branch design.

Supporters of the Patriot Act contend that the clandestine nature of terrorism requires greater secrecy in conducting investigations, collecting evidence and detaining suspects. They claim that the powers granted under Patriot 1 have not been used excessively. Critics, on the other hand, point to news reports of "fishing expeditions," in which large numbers of people from certain ethnic groups and nationalities have been questioned extensively, as well as wiretaps, long-time detention of individuals without filing charges in open court, limitations on attorney-client exchanges and on civilian judicial review.

The labor movement has signaled its discomfort with the erosion of civil liberties. In December 2001, the AFL-CIO passed a resolution that responded forcefully to the Patriot Act and to the administration's "range of measures that threaten civil liberties, breach constitutional rights and, with tragic irony, hand our adversaries a partial victory by degrading the essential guarantees upon which our Nation is founded." Noting the Justice Department's intention to further modify restrictions on FBI surveillance, the resolution warned, "such domestic spying could eventually sweep in unions and citizens organizations and threaten independent political and social activism. Even if existing policies merit review, there must be a deliberative process with congressional involvement and a full public airing and debate before any new policy is adopted."

While the administration continues to count on broad Republican support for its anti-terrorism activities, the dismay over some aspects of the Patriot Act crosses party lines. U.S. Rep. Don Young, a conservative Republican from Alaska who voted for the bill, eight months later called it the "worst piece of legislation we've ever passed."  It has been condemned by academic associations, national human rights organizations and 80 communities around the country that have enacted resolutions calling for protection of civil liberties.

Interestingly, groups as varied as the Eagle Forum, Gun Owners of America and the American Conservative Union have joined the ACLU, People for the American Way and the American Library Association in calling on government to respect Americans' civil liberties.

As the AFL-CIO noted a year and a half ago, in our government's legitimate battle to protect citizens from terrorism, we must be vigilant so that we don't lose the baby with the bathwater: "We cannot accept excessive secrecy and unaccountable power that deny Americans the ability to question the authority and evaluate the conduct of their government."

How campuses and unions are affected

Some of the policies of the USA Patriot Act and subsequent executive orders and federal guidelines raise issues for faculty and students who are concerned about privacy matters and restrictions of First Amendment rights. The Patriot Act amends three federal laws of particular interest to higher education: the Family Education Records Privacy Act of 1974 (FERPA), the Foreign Intelligence Surveillance Act of 1978 and the Electronic Communications Privacy Act of 1986.

In theory, the Patriot Act has the potential to affect campus life in ways large and small, says William Scheuerman, AFT vice president and president of the United University Professions/AFT of the State University of New York.

"There is a risk of going Orwellian--of violating the cultural and legal traditions of privacy and the free exchange of ideas in this country. It goes to the very fiber of our universities," comments Scheuerman, who is a political science professor. "We must not build an infrastructure of snitching on people who are pursuing the ordinary activities of the life of the mind."

ACLU field coordinator Damon Moglen notes the importance of education and vigilance in protecting civil liberties. The ACLU has identified five areas of concern that campus communities should be aware of in the months and years ahead.

Privacy of campus records.  More than 200 colleges and universities have turned over student information to the FBI, the INS and other law enforcement agencies, according to the American Association of College Registrars and Admissions Officers. FERPA allows institutions to reveal "directory" information on students--name, address, phone numbers, citizenship. For more personal information, FERPA requires a court order, and it also requires the institution to notify the student of the request.

Law enforcement agencies may also request information from libraries and bookstores, which may comply voluntarily or wait for a search warrant. The standard of probable cause to issue the warrant is loosened under the Patriot Act. Also, the act stipulates that once the request is made, the person who receives the request may not speak of it to anyone, including the subject of the request.

Surveillance.  The Patriot Act amends the Electronic Communications Privacy Act, to give greater latitude to law enforcement agencies to monitor e-mail and Internet communications, especially when they take place on university-owned equipment.

Academic freedom.  Institutions may institute policies restricting people's right to hold rallies, protest or speak on certain issues. The government also can restrict an academic's right to publish on certain topics.

Campus police cooperation with federal law enforcement agencies.  Campus security already cooperate formally and informally with local law enforcement agencies. Since Sept. 11, however, the FBI has strengthened its relationships with campus police, and it has asked officers on at least 12 campuses to serve on regional Joint Terrorism Task Forces, reported the Washington Post on Jan. 25, 2003. The FBI also hires campus security personnel on a part-time basis to monitor events on campus and investigate student, faculty and staff backgrounds. As FBI employees, they may get access to dorm rooms and offices; they are prohibited from reporting on their activities to the head of campus police or any other member of the university.

Immigrant rights.  Beginning this year, colleges and universities are required to collect information on international students and enter it in a national INS database, the Student/Exchange Visitor Information System (SEVIS). In addition, all non-citizen males over age 16 must participate in a special INS registration. As has been widely covered in the media, some of those who register have been arrested without a warrant or charge against them, have been held without access to a lawyer, and/or deported without the right to an opening hearing.

Higher education responds

Colleges and universities and the higher education association world have grappled with how to respond lawfully to the demands of anti-terrorism initiatives while maintaining the culture of free inquiry in academe. Those who administer student service programs that might have records of interest to law enforcement agencies appear to be bending over backwards to understand and comply with laws but not give up more ground than is required.

The American Library Association, for example, has passed a resolution condemning passages in the Patriot Act and opposing "any use of governmental power to suppress the free and open exchange of knowledge and information or to intimidate individuals exercising free inquiry." But the ALA also has made available extensive resources to help its members comply with the law.

The Association of American College Registrars and Admissions Officers has also warned members not to give out information voluntarily that must be requested through court order.

As institutions were preparing for the January 2003 deadline for complying with the INS SEVIS requirements, some went out of their way to make their support clear to their international students. At the University of Wisconsin, for example, about 600 of the 3,000 graduate employees represented by the Teaching Assistants' Association/AFT are international students, says TAA co-president Mike Quieto. In January, he reported that his union was trying to help students who went home for the holidays and experienced visa problems when they tried to return to the United States. The university promised not to penalize students caught up with INS snafus. Other graduate employee unions, such as the Graduate Employees Organization at the University of Michigan, were planning to hold seminars to help international students know their rights.

At the beginning of March, one faculty senate took the unprecedented action of passing a resolution urging faculty, administrators and students not to cooperate with investigations made under the Patriot Act. The Faculty Senate at the University of Wisconsin-Oshkosh was considering a resolution in opposition to the war in Iraq, but added a censure of the Patriot Act when it learned that one of its faculty was notified that he had been investigated and cleared of wrongdoing under the Patriot Act. The faculty member, Anthony A. Koyzis, chair of the department of education and human resources, is a native of Cyprus, but holds dual Greek-U.S. citizenship.

"The Patriot Act has thrown a chill into anyone in higher education who is concerned with privacy rights and with the right of access to library materials without feeling you are going to be investigated for your interests," says Tony Palmeri, past president of the faculty senate and president of the AFT-affiliated union chapter at Oshkosh, the Association of University of Wisconsin Professors. "Some elements of the federal government seem to have made the decision that the reason we had Sept. 11 was because we have too much freedom in America. I vehemently oppose that view.

"Unions at their best," he adds, "have historically confronted excessive government power. It would be sad and unfortunate if the union movement does not take the lead in showing resistance."

Palmeri hopes that unions will insist on open hearings if and when Patriot 2 is formally presented to Congress. "I hope they [Congress] don't do the same thing they did with Patriot 1," he says. "That is, allow the disgrace of having no public discussions whatsoever."

As for librarian Maureen Pastine, she says she will keep on doing what librarians do best--use her information skills "to inform and educate others."