Curbing the Patriot Act

July 9, 2004

Effort to Curb Scope of Antiterrorism Law Falls Short By Eric Lichtblau New York Times

Friday 09 July 2004

WASHINGTON, July 8 - An effort to bar the government from demanding records from libraries and booksellers in some terrorism investigations fell one vote short of passage in the House on Thursday after a late burst of lobbying prompted nine Republicans to switch their votes.

The vote, a 210 to 210 deadlock, amounted to a referendum on the antiterrorism law known as the USA Patriot Act and reflected deep divisions in Congress over whether the law undercuts civil liberties. Under House rules, the tie vote meant the measure was defeated.

The outcome led to angry recriminations from House Democrats, who accused Republicans of "vote-rigging" by holding the vote open for an extra 23 minutes to get enough colleagues to switch votes. Frustrated Democrats shouted "Shame, shame!" and "Democracy!" as the voting continued, but Republicans defended their right as the majority party to keep the vote open to "educate members" about the dangers of scaling back government counterterrorism powers.

"We're more interested in catching terrorists who are trying to kill Americans than we are in leaving the Capitol in time for happy hour," said Stuart Roy, a spokesman for the majority leader, Tom DeLay, Republican of Texas.

The library proposal, tacked onto a $39.8 billion spending bill, would have barred the federal government from demanding library records, reading lists, book customer lists and other material in terrorism and intelligence investigations. The antiterrorism law expanded the government's authority to secure warrants from a secret intelligence court in Washington to obtain records from libraries and other institutions, using what many legal experts regard as a lesser standard of proof than is needed in traditional criminal investigations.

Federal law enforcement officials say the power to gain access to such records has been used sparingly. Still, the provision granting the government that power has become the most widely attacked element of the law, galvanizing opposition in more than 330 communities that have expressed concern about government abuse. Critics say the law gives the government the ability to pry into people's personal reading habits.

"People are waking up to the fact that the government can walk into their libraries, without probable cause, without any particular information that someone was associated with terrorism, and monitor their reading habits," Representative Bernie Sanders, the Vermont independent who sponsored the measure, said in an interview.

Republicans lobbied furiously to defeat the amendment. President Bush threatened late Wednesday to veto the spending bill if the provision was included, and the Justice Department on Thursday sent a letter saying that at least twice in recent months "a member of a terrorist group closely affiliated with Al Qaeda used Internet services provided by a public library."

Even so, the measure appeared headed for passage, leading by at least 18 votes as the set time for voting wound down. The House traditionally holds its votes open for 15 minutes to give lawmakers time to get from their offices to cast their votes, but the vote on Mr. Sanders's amendment stayed open for 38 minutes, officials said.

Democrats identified eight of the nine Republicans who switched their votes: Michael Bilirakis of Florida, Rob Bishop of Utah, Thomas M. Davis III of Virginia, Jack Kingston of Georgia, Marilyn Musgrave of Colorado, Nick Smith of Michigan, Tom Tancredo of Colorado and Zach Wamp of Tennessee. One Democrat, Brad Sherman of California, also switched his vote to nay, officials said. In all, 18 Republicans joined Democrats in supporting the measure; four Democrats opposed it.

"The timing was well within the rules of the House floor," said Burson Taylor, a spokeswoman for Representative Roy Blunt, the majority whip. "Sometimes that plays to our advantage, sometimes it plays to the Democrats' advantage."

But Democrats accused Republicans leaders of corrupting the voting process and drew comparisons to the dustup last November over a Medicare bill, which squeaked through the House after Republican leaders held the vote open for three hours to get colleagues to switch their votes. The House ethics committee is looking into accusations that one lawmaker, Mr. Smith, was offered a bribe on the House floor for his vote.

Representative Nancy Pelosi, the House Democratic leader, said after Thursday's vote: "Republican leaders once again undermined democracy, this time so that the Bush administration can threaten our civil liberties. How thoroughly un-American."

And Representative Jerrold Nadler, Democrat of New York, said: "The Republicans are so desperate to look into bookstore and library records that they violated the very principles of democracy to block an amendment that had already passed. This is an outrage."

The defeat of the library amendment was an important victory for Bush administration officials.

"We're obviously pleased," said William E. Moschella, an assistant attorney general.

Mr. Moschella sent the letter that cited recent efforts by Qaeda associates to use public libraries to communicate over the Internet.

Mr. Bush has made the Patriot Act and its importance in fighting terrorism a theme in his re-election campaign, urging Congress repeatedly to extend provisions in it that are set to expire at the end of next year.

But few members of Congress have rushed to take Mr. Bush up on the idea, and Mr. Bush's Democratic rival for the White House, Senator John Kerry of Massachusetts, has hit the issue with equal vigor in arguing that parts of the law go too far in prying into the lives of ordinary Americans and risk government abuse.

Debate on the House floor on Thursday revealed deep disagreement over even fundamental questions about what power the government now has to demand library records and how that power has been used since the law was enacted the week after the Sept. 11 attacks.

Last September, Attorney General John Ashcroft accused critics of the government's library powers of fueling "baseless hysteria," and he grudgingly declassified government data showing that the Justice Department had not yet used the power to seize library records.

But the department has refused to say how often the authority has been used since, saying the information remains classified. The American Civil Liberties Union said last month that documents disclosed in court challenges showed that the Federal Bureau of Investigation had sought to use that section of the law soon after Mr. Ashcroft's declaration.

Officials with the American Library Association, with more than 64,000 members, said they suspected based on anecdotal evidence that the government had used the antiterrorism law and related powers to demand library records more frequently than it had acknowledged.

But Emily Sheketoff, executive director of the group's Washington office, said it was impossible to know because librarians served with demands for records were barred under the law from talking about it. The library association is planning a survey to get a better accounting of how often libraries have been served with demands for records.

"Libraries have always been subject to legitimate law enforcement - if the government thinks there is some specific criminal activity, they can go to a judge, show probable cause and get a court order," Ms. Sheketoff said. "There doesn't need to be all this secrecy. Librarians are good citizens like everyone else."

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