A calmer review of Patriot Act

A Page One headline advised us, “Patriot Act ire growing in Maine” (BDN, March 13). Groups such as the Greater Bangor Area Bill of Rights Defense Committee (with approximately 20 members who meet regularly) and the American Civil Liberties Union (ACLU) (an organization of 300,000 members nationwide) are actively campaigning to repeal the Patriot Act. Why such ire?

One part of the Patriot Act that elicits much of the hubris is section 215 of the 342-page legislation – the so-called “business records” or “tangible things” provision. Librarians, as the article highlighted, protective of library patron’s privacy, are particularly concerned with governmental access to library records granted by this section. The BDN stated, “They [librarians] point out that the Patriot Act allows federal agents access to library records without a court order…” The librarians are mistaken; a court order is still needed. For confirmation one can even turn to the ACLU, hardly a friend of the Patriot Act.

The ACLU says that with “… an order from a court …” the government can obtain “… records on clients or customers from libraries, bookstores, doctors …” and other entities. True, there is a difference, as critics pointedly proclaim. Under the Patriot Act the order granting access comes from a specially constituted federal court. Of greater concern to the critics, “probable cause,” that honorable point of law enshrined in the 4th Amendment to the Constitution, does not apply.

A new standard, which the ACLU says is “sometimes called the relevance standard,” has replaced it for investigations under the Patriot Act. Is this “relevance” standard over-broad? Perhaps, and the ACLU certainly thinks so, but I submit that we are talking here not about a matter of philosophy but a matter of degree.

The BDN article also stated that the librarians are critical of the Patriot Act requirement that prohibits library staff from disclosing to clients that should it ever happen their records have been searched. Such a restriction does not strike me as being unreasonable. Obviously, an investigation of a terrorist cell which may not yet have done anything illegal would be seriously compromised if a member received a form letter that said, “Dear Library Patron: This is just a note to let you know that a FBI agent was here today to download the list of books checked out to your account.”

Elsewhere in the BDN article it is stated that U.S. Rep. Tom Allen is co-sponsor of an act, “which would restore judicial oversight to the process by which federal agents obtain and execute search warrants.” This suggests there is no judicial oversight to the process. On the other hand, the ACLU itself has reported that “…the court revealed that it had rejected an attempt by the President George W. Bush administration to allow criminal prosecutors to use intelligence warrants to evade the 4th Amendment entirely.” This hardly supports the contention that there is no judicial oversight. There may well be room for improvement and elsewhere. The ACLU has characterized the process in these words: “Full Truth: Judicial oversight is minimal.” I submit that minimal is different from none. Again, we’re talking not philosophy but degree.

Traditional 4th Amendment protections are appropriate and necessary when dealing with the felonies our justice system is designed to handle (investigating a mob hit, for instance, or disrupting a drug deal). Yet when potential acts of terror are involved where indiscriminate deaths can number in the dozens or as we have seen hundreds or thousands, where financial losses can shake the national economy, and where prevention is more important than prosecution, different, less stringent standards are warranted.

The same weekend when the BDN headlined that Patriot Act ire was growing, the Portland Maine Sunday Telegram, a newspaper that usually voices political views similar to those of the BDN, offered readers an editorial with the lead caption, “How do we fight terror better? Be alert and gather information.” The sub-caption read: “Only constant alertness and continued efforts to gain intelligence on terrorist groups and activities can provide any protection. The war on terror isn’t over by any means.” Amen.

The Patriot Act provides tools for officials to do exactly what the BDN’s Portland colleagues suggest, “… gain intelligence on terrorist groups and activities …” I urge the Bill of Rights Defense Committee and other such well-meaning groups to consider this before letting their anti-Patriot Act ire continue to grow.

Robert K. Slaven, Jr. lives in Blue Hill.