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Getting It Right

Magazine article Editor & Publisher

Getting It Right

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One way the USA Patriot Act mutes the nation's once-free press

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. …

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