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web posted July 1, 2002

FBI begins secretly observing library patrons

For the first time since the Cold War, the FBI is visiting public libraries to keep tabs on the reading habits of people the government considers dangerous.

The searches of some records kept by libraries and bookstores were authorized in a provision of the USA Patriot Act, approved by Congress after Sept. 11. The act, passed virtually without hearings or debate, allowed new federal surveillance measures, including clandestine searches of homes and expanded monitoring of telephones and the Internet.

Section 215 gives the FBI authority to obtain library and bookstore records and a wide range of other documents during investigations of international terrorism or secret intelligence activities.

Unlike other search warrants, the FBI need not show that evidence of wrongdoing is likely to be found or that the target of its investigation is involved in terrorism or spying.

Nearly everything about the procedure is secret. The court that authorizes the searches meets in secret; the search warrants carried by the agents cannot mention the underlying investigation, and librarians and booksellers can be prosecuted for revealing an FBI visit to anyone, including the patron whose records were seized.

The only limitation in the law is that the investigation can't be entirely based -- though it can be partly based -- on activities protected by the First Amendment, such as speech or political organizing. For example, campus radicals, the subject of FBI surveillance in the past, could be targeted if the government alleged they had a connection to terrorism or espionage.

The American Library Association, in guidelines adopted in January, advised the nation's librarians to "avoid creating unnecessary records" and to record information identifying patrons only "when necessary for the efficient operation of the library."

Ann Brick, an American Civil Liberties Union lawyer, called Section 215 "a stunning assault on . . . First Amendment freedoms" and said it also appears to violate constitutional standards on searches.

And, she asked, "How can a target challenge government activity that they don't know about?"

About all that's known publicly is that some libraries have been contacted. In a nationwide survey of 1,020 public libraries in January and February, the University of Illinois found that 85 -- or 8.3 percent -- had been asked by federal or local law enforcement officers for information about patrons related to Sept. 11, said Leigh Estabrook, director of the school's Library Research Center.

In one incident, a librarian in Florida recognized the names of three patrons on the list of suspected Sept. 11 hijackers a few days after the attacks and called the FBI, which then obtained computer records from the library.

Librarians and the FBI have been down this road before. Under a Cold War initiative called the Library Awareness Program, the FBI asked staff at science libraries about the reading habits of anyone with a foreign-sounding name or a foreign accent.

Since then, every state except Kentucky and Hawaii passed laws making library records confidential. But a federal law like the Patriot Act overrides state laws.

"If people know what they're accessing or reading is evidence of wrong thinking, they're going to censor themselves," said Deborah Stone, deputy director of the American Library Association's Office for Intellectual Freedom.

The FBI didn't respond to an inquiry about how the law would be used.

Head of Sept. 11 probe allegedly obstructed Danforth's Waco inquiry

The official in charge of ferreting out information about the FBI for a joint congressional intelligence panel allegedly obstructed a Justice Department probe of the bureau two years ago.

As the FBI's deputy general counsel, Thomas A. Kelley was the bureau's point of contact for special counsel John C. Danforth's inquiry into the 1993 Waco debacle in which 75 Branch Davidians died in a fire after a 51-day standoff.

Kelley, who has since retired from the FBI, heads the intelligence panel's probe of the bureau's role in tracking terrorists before the Sept. 11 attacks.

According to a December 2000 internal FBI memo, Kelley "continued to thwart and obstruct" the Waco investigation to the point that Danforth was forced to send a team to search FBI headquarters for documents Kelley refused to turn over. "This non-cooperative spirit was at the specific direction of [deputy general counsel] Kelley," the memo states.

The memo, written by an agent in the bureau's Office of Professional Responsibility, is cited in a letter sent to the intelligence committee leadership by Sen. Charles E. Grassley (R-Iowa).

"I am concerned that Mr. Kelley is part of this review," Grassley wrote.

The letter says that even when Kelley's supervisor recused him from dealing with the Waco investigators, Kelley "continued to insert himself into the Waco inquiry."

Kelley declined to commentThe memo says Kelley should have been investigated for alleged "unprofessional conduct, poor judgment, conflict of interest, hostile work environment and retaliation/reprisal" related to his role in the Waco investigation. Grassley's letter says Kelley retired "before an OPR investigation could proceed."

Grassley, a fierce critic of the FBI who supports establishing an independent commission to probe intelligence problems, declined to comment.

"The chairman and ranking members are taking it under consideration," said Andrea Andrews, spokeswoman for Sen. Richard C. Shelby (Ala.), ranking Republican on the Senate intelligence committee.

Congressional officials said intelligence panel director Eleanor Hill was waiting to obtain confidential memos and other documents regarding the allegations against Kelley.

Richard M. Rogers, a Justice Department lawyer familiar with Kelley's work and demeanor, called him a "solid" person and said he would consider him a benefit to any investigation of the FBI. "When you do investigations sometimes you need someone on the inside to point you in the right direction."

"A lot of people found Tom's manner off-putting, but once you got past that, there's a different person," Rogers said.

Kelley is part of a 27-person staff hired to do the panel's work. The staff has divided into teams. Each team has been given a major intelligence agency -- the CIA, FBI, National Security Agency -- to probe. Kelley is leading the FBI team. The committee has been bogged down by internal strife, staffing problems and lack of focus. It has also met with resistance to some of its requests for documents.

In an interview last year, Danforth, a former senator from Missouri who conducted a 14-month investigation into the FBI's handling of Waco, faulted the FBI's "spirit of resistance" to outside scrutiny. "It was like pulling teeth to get all this paper from the FBI," he said.

The Sept. 11 committee put off public hearings, originally set to begin this week, until an unspecified date. Senators on the panel have been particularly concerned that the inquiry is not focused sharply enough. The first two weeks of meetings were spent reviewing the history of Osama bin Laden's terrorist actions and the U.S. responses to it.

House committee approves guns in cockpits

Ignoring Bush administration objections, the House Transportation Committee voted June 26 to allow more than 1,000 pilots to carry guns for a two-year trial.

Committee chairman Don Young, R-Alaska, said the bill could come up before the full House for a vote the week lawmakers return from their July 4 recess.

The legislation approved by voice vote would allow up to 1,400 pilots -- 2 percent of the work force -- to volunteer to undergo training and obtain permission to carry guns on board planes they are piloting. After two years, the Transportation Security Administration would decide whether to end the program, continue it or expand it.

"Nothing else can provide the deterrence of an armed pilot protecting what otherwise would be a defenseless flight deck," said aviation subcommittee chairman John Mica, R-Fla.

Backed by pilots' unions, bipartisan groups of lawmakers in both houses have moved to overturn the administration's decision to keep guns out of airplane cockpits.

"I have listened to pilots," Young said. "They truly believe that if the pilots were armed on 9/11, the hijackings never would have happened."

In the Senate, the task has been made more difficult by the opposition of Senate Commerce Committee chairman Ernest Hollings, D-S.C., whose panel has jurisdiction over the issue. But proponents say they will try to bypass the committee and offer the provision as an amendment to another bill.

The Association of Flight Attendants objected to the bill, saying it does not protect passengers and crew members in the cabin.

"Giving guns to pilots without specific cabin defense requirements for airlines could be deadly for flight attendants and passengers," union president Patricia Friend said. "It also does nothing to help flight attendants thwart a threat to the cockpit, which must come from a hijacker in the cabin."

Pilots and flight attendants were on the same side of another issue that same day. American Airlines employees met with lawmakers to call for streamlined airport screening for flight crews.

They called for flight crews to be issued tamperproof identification cards after undergoing background checks. With the cards, they could enter separate lines at checkpoints where they would not be subject to the extensive screening that many pilots and flight attendants now must go through.

American Airlines executives sent a letter to Transportation Security Administration head John Magaw, requesting that he set up the program.

Court puts pledge ruling on hold

A day after he shocked the nation by declaring the Pledge of Allegiance unconstitutional, a federal appeals court judge put his ruling on hold June 27.

Circuit Judge Alfred T. Goodwin, who wrote the 2-1 opinion that said the phrase "under God" violates the separation of church and state, stayed his ruling until other members of the 9th U.S. Circuit Court of Appeals decide whether to change course.

The appeals court can rehear the case with the same three judges, or an 11-judge panel.

Goodwin's action has no immediate impact, since the ruling already was on hold by court rules for 45 days to allow for any challenges.

Vikram Amar, a Hastings College of the Law scholar who closely follows the appeals court, said the latest ruling means that, for now, the court opinion finding the pledge unconstitutional "has no legal force or effect."

"They're acknowledging the likelihood that the whole 9th Circuit may take a look at this," Amar said.

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