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Expanding the Definition of ‘Justice’ in the PATRIOT Act Debates

In community organizing, intellectual freedom, library profession, media justice, public policy, racial justice, Uncategorized on September 23, 2009 at 10:41 am

Today, the Senate Judiciary Committee is holding hearings on the reauthorization of the USA PATRIOT Act. In the coming months the national debate about the PATRIOT Act will heat up once again. Three controversial sections of the Act are scheduled to sunset December 31, 2009. These are Sections 215 and 206 along with the “lone wolf” provision of the Intelligence Reform and Terrorism Prevention Act (Sec. 6001). The reauthorization process also presents new opportunities to address FBI rampant use of National Security Letters.*

Rep. Lamar Smith (TX) has already proposed legislation (HR 1467, Safe and Secure America Act) to extend certain sections, as they are currently written, with no reauthorization period for 10 years. Just last Thursday, Sens. Russ Feingold (WI) and Richard Durbin (IL) announced the Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act proposing new reforms to both the PATRIOT Act and the FISA Amendments Act. Yet, still, the Obama Administration supports reauthorizing the Act without any added safeguards.

In 2009, the whole of the progressive community must take coordinated action to reverse the PATRIOT Act and reinvigorate public conversation. The debate is currently framed by those who favor extending these controversial sections versus those who seek greater judicial and congressional oversight and more narrowly tailored spying. Given this context, progressive activists and librarians may decide to support civil liberties advocates, such as the ACLU and the American Library Association, in achieving the safeguards proposed by the JUSTICE Act. But, we must do so mindfully while considering the limits of those reforms.

Much of the current debate relies on constitutional arguments about the First and Fourth Amendments. This makes sense in the courts where the judiciary is only obligated to consider interpretations of the Bill of Rights. But this is not the standard on which we should base our mobilizing. More is at stake than free speech and privacy. As librarian Emily Drabinski wrote during the last reauthorization period:

“There are … fundamental limits to a strategy of resistance that is essentially reactive and narrow in focus. While librarians respond quickly and effectively to challenges posed by the Patriot Act, we have little in the way of sustained resistance to systemic forces that undermine information equity and access in less visible but more fundamental ways” (2006).

This means, fundamentally, we must address the fact that the PATRIOT Act was born in the context of neoliberalism. Its foundation was laid long before September 11, 2001. So, as we consider a shared platform for public education, grassroots actions and Washington lobbying efforts, activists and progressive librarians should frame our concerns and solutions within the frameworks of human rights and global justice. This requires some deeper vision and deeper collaboration than we have attempted.

To start, a global justice vision of intellectual freedom has at its heart a practice of active solidarity with the communities (both domestic and international) most impacted by the War on Terror, including immigrants to the U.S. regardless of their citizenship status. Our demands must include an end to racial profiling and directly challenge attacks on dissent and political speech — such attacks were recently embodied by “homegrown terrorism” legislation (H.R.1955, S.1959, 110th), which passed the House by a vote of 404–6. The bill never became law, but we can expect to see similar legislation again.

A global justice vision of intellectual freedom draws connections between privacy erosion, the growing prison system, preemptive wars and the repression of global social movements. It has at its core a commitment to the abolition of torture, indefinite detainment, secret wiretaps and other forms of government surveillance. It means overturning the PATRIOT Act, not simply reforming it. We must not lend truth to the idea that safety and human rights are at odds.

Further, the library profession, in particular, needs to achieve broader coalition than we have in the past. Section 215 (dubbed “the library provision”) is a threat to more than just library patron privacy. While the library community mobilized quickly to challenge Section 215 and succeeded in winning important changes during the last reauthorization, the revisions do not go far enough. Warrants issued under Section 215 remain a danger to community organizing groups, charities, service providers, international aid organizations and, especially, groups working with communities of color and immigrants. Section 215’s expiration provides a critical opportunity for libraries to work in coalition with other impacted groups.

What do I propose? By joining with public interest, human rights, media reform, racial justice and grassroots global justice groups, the library community might help bring these policies into greater focus. At least one example in the right direction includes the joint proposals made by contributors to the document Liberty and Security: Recommendations for the Next Administration and Congress. Their collaborative effort to address broad information policy issues is an example to follow. I hope to post more community-based examples to this blog as the reauthorization debate gains momentum.

The 111th Congress will make a number of important decisions over the new few months. The level of heat in those debates should be determined by the strength and coordination of our local-to-national organizing. With December 31 just around the corner, it’s time to light the match.

*NOTE: According to DOJ’s Office of the Inspector General, the FBI issued 192,499 National Security Letter requests between 2003-2006 alone. All but 3 of these NSL recipients are unknown because PATRIOT Act § 505 stipulates nondisclosure, or a gag order. We do know that San Francisco’s Internet Archive (IA) received one of these NSLs. The FBI ordered IA to turn over transactional records including the name, address, email headers, length of service, and activity logs for specific users. IA fought the request and gag in court. Details came to light in mid-2008. We should not miss the opportunity to build on the momentum of well-publicized NSL abuse.

Recommended Reading and References

Drabinski, E. (2006, Winter). Librarians and the Patriot Act. Radical Teacher. Retrieved from, http://findarticles.com/p/articles/mi_m0JVP/is_77/ai_n27098778/

Gorham-Oscilowski, U., & Jaeger, P. T. (2008). National Security Letters, the USA PATRIOT Act, and the Constitution: The tensions between national security and civil rights. Government Information Quarterly, 25(4), 625-644.

Mart, S. N. (2008, March 12). The chains of the Constitution and legal process in the library: A post-Patriot Reauthorization Act assessment. [Unpublished working paper]. Retrieved November 25, 2008, from Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105448. UPDATED VERSION AVAILABLE: 33 OKLA. CITY U. L. REV. 435 (2008).

Office of the Inspector General. (2007a, March). A Review of the Federal Bureau of Investigation’s Use of National Security Letters. [NSL Audit Report]. United States Department of Justice. Retrieved November 28, 2008, from http://www.usdoj.gov/oig/special/s0703b/final.pdf.

Office of the Inspector General. (2007b, March). A Review of the Federal Bureau of Investigation’s Use of Section 215 Orders for Business Records. [Section 215 Audit Report]. United States Department of Justice. Retrieved November 28, 2008, from http://www.usdoj.gov/oig/special/s0703a/final.pdf

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