August 8, 2004

Sensing the Eyes of Big Brother, and Pushing Back

Duncan James Livingston for The New York Times
David Rain spoke last month against a resolution passed that night by the Tumwater, Wash., City Council for city workers not to follow unconstitutional parts of the USA Patriot Act.

TUMWATER, Wash. - After saluting the flag and purring over a potluck invitation from the Veterans of Foreign Wars, the City Council of this town of 13,000 got down to the business of the night: a public hearing on whether to oppose the USA Patriot Act.

Liberals quoted Newt Gingrich, the Republican former House speaker, who says that the federal law passed just after the Sept. 11 attacks needs to be reined in to protect basic civic birthrights.

Conservatives praised the campaign against the act by the American Civil Liberties Union, which says the law gives government unchecked power to rifle through an individual's financial and computer records and bookstore purchases.

And one Tumwater resident asked why all the fuss in a sleepy little town over a federal antiterror law.

In the end, the concerns over the Patriot Act - real or phantom - were enough to compel the Tumwater City Council on July 20 to join more than 330 communities and 4 states that have condemned or expressed worry about the act. The resolution called on city employees in this town near Olympia not to follow provisions of the law that violate the Constitution - though leaving it vague how they would interpret this.

In the last two months, a small window has opened into just how the government may be using the most contentious parts of the law, and it has revealed enough information to stoke fresh fears in civic forums, in Congress, the capitals of four states - Alaska, Hawaii, Maine and Vermont - and among librarians.

The law, passed overwhelmingly in Congress just 45 days after the terrorist attacks, is a grab bag of enhanced police and prosecution powers. In the presidential campaign, it serves as bumper-sticker fodder for opponents, and a centerpiece of President Bush's effort to show he has responded aggressively to domestic terror.

In fact, most of the fine points in the 342-page law have generated minimal debate. But at least two parts have caused a furor across party lines.

One provision empowers the authorities to search people's homes without notifying them at the time. That provision may have been used by federal agents to rummage through possessions of Brandon Mayfield, the lawyer from the Portland, Ore., area suspected and later cleared of a connection to the bombings in Madrid earlier this year, said his lawyer, Steven T. Wax.

Another clause, granting the government authority to go through personal library, business, medical and other personal records, may have been used in another case, though federal documents make it unclear just what the purpose was.

Librarians are so riled about that provision of the Patriot Act - Section 215 - that they plan a nationwide survey to see whether reading and Internet habits have changed because of it. And in Congress, a vote to knock out that section fell one vote short of passage on July 8.

Last September, Attorney General John Ashcroft, in trying to quell what he called "baseless hysteria," declassified some data and said the government had not once used the law to go into libraries.

"No one's reading habits have been reviewed," Mr. Ashcroft said, adding, "charges of abuse of power are ghosts, unsupported by fact or example." His assurance did little to curb opposition, and town-hall-style resolutions against the law have only picked up steam.

Part of the problem may be because of the official secrecy that is welded to so much of the law, making it difficult to assess its use or effectiveness.

Librarians point to an internal F.B.I. memorandum, dated Oct. 15, 2003, and released in June as part of a lawsuit brought by the A.C.L.U. It indicates the government may have used the power of the law that allows it to request personal records from a third party. The memorandum was written a month after Mr. Ashcroft made his statement.

"It was concrete enough to tell us they wanted to do a search, but unclear if it was a library," said Emily Sheketoff, executive director of the Washington office of the American Library Association, which wants the law changed to protect the privacy of library users.

Justice Department officials say the memorandum revealed only intent, not action.

"The document showed that the F.B.I. sought permission," said Mark Corallo, a Justice Department spokesman. "That's all it is. It doesn't say whether it was granted."

Under the antiterrorism law, the government does not have to say if it is looking into someone's records, and people who have been asked to turn over such records are required to keep the request secret. The government needs these powers, federal authorities say, to help fight new types of crimes and threats.

Another F.B.I. memorandum seems, to critics, to expand the reach of what the government can obtain in secret searches. The memorandum, offering internal guidelines for federal agents, interprets a part of the law that allows the government to seize "tangible things" in an "ongoing investigation" to include an apartment key from a landlord.

"Now we have it from the government's own mouth that they are going to rely on a sterile phrase like 'tangible things' to get the keys to people's apartments," said Jameel Jaffer, a lawyer for the civil liberties union.

"You might be able to get the key," Mr. Corallo said. "But they could not use it to enter a house or apartment."

To opponents of the law, these few glimpses inside the Justice Department's internal processes provide more than enough reason to fear.

"A veil of secrecy has shrouded the Patriot Act for two and a half years," said David L. Sobel, general counsel for the Electronic Privacy Information Center, a nonprofit group that does research on privacy issues. "The fragments of information that we have managed to pry out of the Justice Department raise serious questions and provide few answers."

Here in the Pacific Northwest, the law has figured in two widely publicized cases, both of which raise questions that echo the concerns of critics.

One case, the Mayfield investigation, may yet shed some light on how the government is using the provision of the law that allows federal agents to search a home without telling the residents until later.

The standard for most search warrants has long been "knock and announce." But the antiterrorism law expanded the search power for terror investigations, giving the government the right to conduct "sneak and peek" searches, as they have been called.

Mr. Mayfield, an American citizen, immigration lawyer and convert to Islam, was suspected of a connection to the Madrid bombings after the government claimed to have matched his fingerprints to a set linked to the bombings. Agents searched his home with a regular court warrant.

But they may have conducted an earlier secret search, said Mr. Wax, his lawyer, who is the federal public defender for the Portland district.

"We believe the Patriot Act was used against Mr. Mayfield," Mr. Wax said.

Two months ago, the Justice Department apologized to Mr. Mayfield, after Spanish authorities said the fingerprints were actually those of an Algerian national. Mr. Ashcroft said it was an "unfortunate incident" and one that the Justice Department "deeply regretted."

Mr. Mayfield is still trying to find out whether some of his possessions were taken in a secret search done under the powers of the law, Mr. Wax said. Mr. Mayfield, he said, is also upset about a part of the law that allows federal agents to share information about a suspect with intelligence agencies, saying his privacy has been violated.

"It's chilling," Mr. Wax said. "Here you have a case of an innocent man. Information about him, his wife and children were obtained and disseminated among the intelligence community."

Asked about Mr. Mayfield's case, Mr. Corallo, the Justice Department spokesman, said Mr. Mayfield's privacy could have been protected if the investigation of him had never been made public.

"We were infuriated that this was leaked at such an early stage," he said.

In another case, a Saudi graduate student, Sami Omar al-Hussayen, was charged with supporting terrorist groups by maintaining a number of Islamic Web sites. His trial tested a part of the law that made it a crime to provide "expert advice or assistance" to terrorist groups. Mr. Hussayen said he did not support the groups, but merely acted as Web master.

After a lengthy trial in which the government presented evidence from more than 20,000 e-mail messages and 9,000 phone calls, a jury in Boise, Idaho, acquitted Mr. Hussayen in June.

One juror, John Steger, said in an interview that the jury believed Mr. Hussayen's activities were matters of free speech, protected by the First Amendment.

"He never spoke a word supporting terrorists,'' Mr. Steger said. "He just did what a university or a television station does - he posted the stuff."

In an effort to shore up support for the law, the Justice Department released a 29-page report in July, detailing how the it had been used to thwart terror plots and to prosecute other crimes like kidnapping and child pornography.

But the report steered clear of the provisions that have caused the most concern to civil liberties groups, and did not chronicle any ways in which the new powers to obtain people's records or get search warrants without notification had been used. Justice Department officials said the secrecy provisions of the law prevented them from giving any details on their use.

Whether federal agents are monitoring reading habits or not, the newfound power to do so has already had an effect on how people use their libraries, Ms. Sheketoff, the library association official, said, citing evidence from fellow librarians. Many libraries have posted notices saying that because of the law, they cannot protect the privacy of patrons' reading habits.

"If you live in Detroit, and have olive skin, are you going to go into the library and check out a book on the Koran?" Ms. Sheketoff asked.

This fall, the American Library Association will try to determine how the law has affected library operations. To get around the part of the law that prohibits those who have been asked about such records from disclosing the search, the library association is trying to devise a questionnaire that protects anonymity and does not break the law.

"If we find that they are not using this provision, well, then why do they need it in the first place?" Ms. Sheketoff said. "We know that if there is a law on the books that can be abused, it will be abused."

Mr. Corallo compared the new powers to a police officer's gun. "Ninety-nine percent of police officers never fire their weapon," he said. "But you sure as hell want them to have it when they need it."

Here in Tumwater, there was enough concern over anecdotal tidbits about the law to pass the resolution against it. The vote was 5 to 2.

"These are fundamental rights," said Councilman Wayne Williams, who drafted the resolution. "And these rights begin at home. Maybe this resolution, coming from a small town, helps to remind people that big laws like the Patriot Act affect people at the lowest level."

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