Jewish World Review April 25, 2003 / 23 Nisan 5763
Fighting for privacy in an era of terror
While American troops have been winning the war in Iraq, privacy rights continue to come under assault back here at home. Fortunately, we have those fedayeen of free-speech advocacy, America's librarians, fighting back.
Arousing their dudgeon are provisions of the controversial USA Patriot Act, a 340-page anti-terrorist law passed by Congress in October, 2001, in the heat of post-Sept. 11 fears and loathings.
Sensing a threat to individuals' constitutional rights, about 90 local governments have passed resolutions condemning provisions of the law that compel libraries and bookstores to assist federal investigators in monitoring the reading habits of suspect American citizens. Some libraries have acted on their own to post warning signs for patrons and even destroy paperwork that might provide a trail of the book browsing or Web browsing of library users.
The little town of Arcata, Calif., went even further in March by outlawing voluntary compliance with the Patriot Act by town officials, subject to a fine of $57. City council member David Meserve, who drafted the ordinance, called the move "a nonviolent, preemptive attack."
Obviously, council members are itching for a court fight. I wish them luck, but even in the unlikely event of a confrontation with the feds in Arcata, I don't expect their protest or the rest to get very far, at least not in the current courts. Federal law trumps local laws under our Constitution and, so far, the higher courts have handed Attorney General John Ashcroft's office considerable latitude in detaining, deporting, eavesdropping and other civil liberties intrusions.
Supreme Court Justice Antonin Scalia underscored that point in a March 18 speech at John Carroll University in suburban Cleveland. "The Constitution just sets minimums," he said, according to the Associated Press. "Most of the rights that you enjoy go way beyond what the Constitution requires."
Indeed. Anyone who thinks we may have too many rights already cannot be expected to fight very hard to hold onto them, even when the erosion may extend beyond wartime needs.
Ashcroft's office says the public alarm over the Patriot Act is misplaced. After all, they say, investigators must have probable cause to conduct an investigation into the books you purchase or borrow from a library, or the Web sites you visit at a library.
And that may be true, although it's hard to tell how true it is as a matter of law. Passed in the heat of post-9/11 passions in October, 2001, the USA Patriot Act was approved without being fully understood, even by those who voted for it, let alone those who must enforce it.
"I don't know that 5 percent of the people who voted for that bill ever read it," David Keene, president of the American Conservative Union, quipped at a recent panel on the act held by the American Civil Liberties Union.
"You're always an optimist," quipped former Rep. Bob Barr (R-Ga.), a 1998 House impeachment manager and, more recently a consultant to the ACLU.
The gathering of well-known conservatives like Barr and Keene at an event hosted by the liberal-leaning ACLU shows how worries about Patriot Act abuse cross party lines.
Yet, Democrats did not fight its passage much. Even Sen. Russ Feingold (D-Wis.), the Senate's lone vote against the bill, was moved to fume from the Senate floor that then-Majority Leader Tom Daschle had told their party's caucus to "fold." With Democrats putting up such weak resistance then, one wonders how long Republicans can resist now before they put their megaphones down.
Fortunately, before the Patriot Act left Congress, "sunset" provisions were added to phase its powers out in 2005.
This was smart. If any rule holds true in Washington, it's the durability of a law, once passed, to resist ever being repealed, even when it has become obsolete. (Can you say, "mohair subsidy"?)
Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, has proposed removing the sunset provision, instantly making the hastily-passed Patriot Act permanent. And, waiting in the wings, is a proposed "Patriot II" the Justice Department has been working on that would further enhance the powers granted under the first Patriot Act.
What's the rush? At times like these, our national leaders need to ponder Benjamin Franklin's wise observation back in 1759" "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Yes, it's a common belief that security in a time of war or national crisis requires a suspension, at least for a while, of civil liberties. But the opposite is not necessarily true. Giving up civil liberties without enough thought behind the action doesn't necessarily make us any safer.
But it does give us new reasons to worry, not only about terrorists, but also about our government.
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