John Ashcroft's war on terrorism includes the most far-reaching gag order in First Amendment history -- preventing the press from reporting on the FBI's seizure of the lists of books bought or borrowed in bookstores and libraries by noncitizens and citizens suspected of terrorist activities. Under the omnibus USA Patriot Act, the FBI has the authority to get an order from the Foreign Intelligence Surveillance Court -- a secret body composed of rotating federal judges -- to seek "any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities."
The American Booksellers Foundation for Free Expression (ABFFE) and the American Library Association (ALA) have particularly alerted their members to part of the law that prevents booksellers and librarians -- once the FBI has come calling -- to reveal that a search has been made. The law states: "No person shall disclose to any other person ... that the Federal Bureau of Investigation has sought or obtained" these records.
This means that the press and, therefore, the public cannot find out how often and where these searches have taken pace -- and what books, as well as readers, are under suspicion. Customarily, when a court imposes a gag rule on pretrial or trial participants, including the press, it is fought in open court by the press and often overturned.
Now, however, this chilling incursion on the First Amendment right to read remains as hidden as some of the security operations of the People's Republic of China.
The ABFFE and ALA have told their members that they are entitled to lawyers once raids on their records have happened. But, when either of these organizations are contacted by their constituents, the caller must not reveal the visitation by the FBI. All a bookseller or librarian can say is: "We need to contact your legal counsel."
I asked lawyers for both the ABFFE and ALA whether -- once this law is challenged -- the court proceedings also will be secret since it involves domestic and foreign intelligence. Already, Attorney General Ashcroft has closed many immigration hearings to the public and the press. I was told that it is likely that courts hearing these search cases under the USA Patriot Act also will be closed.
My information is that there have been, as of this writing, at least three FBI searches of the reading preferences of people under suspicion. That is all the information I have, and I cannot reveal my sources lest they be subject to penalties for breaking the gag order.
By what criteria will the FBI place certain readers under suspicion? Under the USA Patriot Act, one of the definitions of "domestic terrorism" covers "acts [that ] appear to be intended ... to influence the policy of a government by intimidation or coercion" (emphases added). This broad and vague language sounds like a justification for imaginative fishing expeditions.
As for books that might lead to the "intimidation" of the Bush-Ashcroft investigative forces, George Orwell's 1984 could be a possibility. But this pervasive silencing of librarians, booksellers, and the press as to what is actually going on, and why, has led Barbara Dimick, director of the Madison (Wis.) Public Library, to tell The Capital Times in that city, upon hearing about the further empowerment of the FBI: "We're real jittery. It puts us in a hard position. We want to tell people who use the library that records are confidential and they can use materials without fear of intimidation. That's being usurped now by federal agents."
The USA Patriot Act does contain one slippery clause for the attorney general to use against First Amendment advocates who claim that the government is overreaching: "An investigation under this section shall ... not be conducted of a United States person solely upon the basis of activities protected by the First Amendment to the Constitution of the United States" (emphasis added).
Lawyers for the booksellers and the librarians say that this newspeak (as Orwell called such language) means that if "a United States person" solely speaks on a street corner protesting Ashcroft's assaults on the Bill of Rights in the USA Patriot Act, or writes a column like this one, the First Amendment will still apply.
But, if that "United States person" is suspected by the FBI of also somehow being involved in terrorist activities, the First Amendment no longer protects the privacy of that person's reading preferences in view of the possibility that ideas in books can have consequences.
The challenge to the press is to use our legendary resourcefulness to break through the wall of silence and tell the country about this subversion of the First Amendment right to choose what we want to read without being intimidated by the government. Said Thomas Jefferson: "Are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy? ... Whose foot is to be the measure to which ours are all to be cut or stretched?"
Copyright © Nat Hentoff 2002. Reprinted for fair use only
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