“Everything has changed.”
That belief seemed to be on the minds of many Americans immediately following the terrorist attacks of Sept. 11 and even now, more than two years later. The attacks seemed to awaken a sense of new vulnerability as well as a renewed sense of national purpose.
Everything has changed, some UC Davis experts say, not just because of the prospect of terror, but also perhaps because of what the government is doing to confront it by using the Patriot Act and follow-up legislation. It’s the age-old debate of how to balance security and liberty — and are the two mutually exclusive?
Library records
Under the Patriot Act, the federal government can seek records from libraries during national security investigations.
George Bynon, deputy university librarian and associate university librarian for administrative and access services, said the General Library has not received any visits from federal agents subpoenaing library records. “No FBI agents have shown up on our doorstep asking for records,” he said. “The likelihood it will happen is extraordinarily low.”
But that’s not even the issue, Bynon says.
“It’s the potential that exists for this scenario that concerns library officials across the nation,” said Bynon. “The Patriot Act is a challenge for institutions involved in providing access to information and which consider patron records confidential.”
Bynon said the UC Davis General Library quickly disconnects a patron record from the book he or she has borrowed. This practice, he added, reduces the possibility that the library will be in possession of such confidential records that might be obtained under subpoena.
He understands the good intentions behind the Patriot Act in stopping terrorism, especially in the wake of 9/11. “But we are now seeing debate throughout society about whether it went too far,” he said.
In the library world, he said, it’s a time-honored value that the institutions be “ethical custodians” of patron information. “We do everything we can to not infringe on the privacy the people who make use of our information.”
No fishing expeditions
The Domestic Security Enhancement Act, dubbed “the Patriot Act II,” has yet to be approved by Congress. It proposes to expand the use of the federal death penalty, create tougher bail restrictions and give the FBI power to subpoena records and witnesses without having to go to a judge or grand jury. This would be in addition to the original Patriot Act’s powers for searches, wiretaps, electronic and computer eavesdropping, and access to personal and business information that Congress approved six weeks after the terror attacks of Sept. 11, 2001.
Some say the Patriot Act legislation is a valuable tool in the fight against terrorism and that it’s not being misused — more likely, they say, it’s being misrepresented.
Karen Ernst, spokesperson for the FBI’s Sacramento office, says her organization has been given the task of enforcing the Patriot Act — a law, she points out, that was overwhelmingly passed by a vote in Congress.
“We’re not going on fishing expeditions,” she said. “Here at the FBI we’re very concerned about civil rights, and there is a lot of oversight, including requests that go before judges, that occur routinely in our investigations.”
She added, “The Patriot Act is not being abused. It’s for use in fighting terrorism, plain and simple.”
Since the Patriot Act’s inception, Ernst pointed out, the FBI has not requested book-borrowing records from any library in the nation, including those at universities. The same holds true for book-buying records at private bookstores, she said. In a rare disclosure of classified information, Attorney General John Ashcroft revealed in September that the federal government had not utilized Section 215 of the Patriot Act — the one dealing with book buying and library usage.
“Our viewpoint is that there’s a lot of misunderstanding about the Patriot Act,” Ernst said. “Some people may believe its being utilized in many instances — such as when someone calls the FBI about a ‘suspicious-looking neighbor’ — but that’s not the case.”
Ernst said the FBI has so many other laws to enforce — from investment scams to bank robberies and drug trafficking — that it’s hard-pressed to find the time to be imaginatively intrusive. “We’re simply in the position of enforcing the law.”
Research oversight
In higher education, however, it’s not just the possibility of library monitoring that concerns some university officials. Much research activity occurs on any university campus, especially at UC Davis where the campus boasts a plethora of faculty experts in the biological, agricultural, environmental and physical sciences.
Lynne Chronister, associate vice chancellor for research and administration at UC Davis, says the Patriot Act and the myriad of other laws and regulations that have been enacted or expanded have begun to impact university research in a number of ways. “We are seeing contracts from federal agencies requiring restrictions on publication of results, increased reporting and security for certain pathogens and toxins, and restrictions on foreign researchers using certain agents or facilities,” she said.
Chronister noted that the university is trying to balance these increased requirements with the need to support research.
“We have not accepted any award that contained restrictions on publications but are conscientiously following the rules dealing with select agents,” she said.
Research is an especially sensitive topic in regard to the war on terror and higher education. Last week, a panel of the National Research Council called for scientists and the federal government to establish safeguards that would prevent biological researchers from inadvertently providing information useful to would-be terrorists or bioweapons inventors working for rogue nations.
Civil rights issues
Kevin Johnson, law professor and associate dean at UC Davis’ King Law School, says the Patriot Act raises serious civil rights issues involving electronic surveillance, Internet usage and immigration.
“The Patriot Act has had immigration consequences as well, including a broad expansion of what constitutes terrorist activity and therefore may subject a non-citizen to deportation,” Johnson said.
Johnson suggests that the proposed expansion of the Patriot Act would allow for U.S. citizens, including those born in America, to have their citizenship withdrawn and possibly be deported for engaging in the newly defined concept of terrorism.
“This would amount to an unprecedented change in this nation’s laws and, for the first time in U.S. history, allow native-born citizens to be stripped of their citizenship,” he said.
Johnson said that some groups, including immigrant and civil rights organizations, are protesting against the new security measures and that a “backlash of sorts exists against the security measures taken by the federal government in the name of national security.”
He noted that the King Law School is interested in discussions and dialogues about the Patriot Act and its sequel. In April 2004, the UC Davis Law School Review is sponsoring a conference on immigration and civil rights in the wake of Sept. 11. Academics and activists from around the country will be participating, Johnson said.
Historic parallels
Kathryn Olmstead, assistant professor of history, recalls other historical examples of the federal government curtailing individual liberties in the wake of perceived national threats.
“The best parallel to the present situation is the Red Scare of 1919,” she said.
In the spring of 1919, she explained, there were a series of terrorist attacks in the United States. Someone sent package bombs to more than a dozen prominent Americans. In addition, a terrorist blew himself up as he was attempting to deliver a bomb to the home of the attorney general, A. Mitchell Palmer. The front of Palmer’s house was destroyed.
“Alarmed by the bombs and by the Bolshevik Revolution in Russia,” Olmstead said, “Palmer became convinced that anarchists and communists were about to overthrow the U.S. government. He launched a series of raids that later became notorious among civil libertarians.”
Olmstead said justice department agents raided homes and businesses and union halls. “Many Americans suspected of left-wing connections were arrested, held incommunicado, and imprisoned in dreadful conditions.”
She noted that the non-citizens were summarily deported without trial or even access to lawyers. “Eventually, the acting secretary of labor, Louis Post, who was responsible for deportations, protested the Palmer raids and refused to deport many of the suspects,” Olmstead said.
She said another example of government curtailment of civil liberties was the internment of Japanese-Americans during World War II. “Two-thirds of those interned were American citizens, yet the U.S. government interned everyone, including children, of Japanese descent because they were suspected of being potential spies or saboteurs.”
In the years ahead, with life under the Patriot Act, Olmstead says,“Certainly, many citizens will experience more government surveillance of their activities.”