Stone, Epstein Debate Patriot Act

One anti-terror measure, three widely divergent views
Bill Myers
Chicago Daily Law Bulletin
June 21, 2005

A debate Tuesday over the USA Patriot Act zeroed in on a single section of the act -- with one law professor saying it was a threat to civil liberties, a top federal prosecutor saying it was a vital law enforcement tool and another law professor saying the whole debate was "overblown."

Section 215 of the Patriot Act allows the government to investigate a suspect's "tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities."

The debate, sponsored by the Chicago Lawyers' Chapter of the Federalist Society and the Heartland Institute, was held at the Chicago Athletic Association, 12 S. Michigan Ave.

Though billed as an examination of the larger set of anti-terror measures provided for under the law, the debate quickly narrowed to a discussion of section 215, dubbed "the library section" by its critics.

University of Chicago Law School Professor Geoffrey R. Stone argued for removing the section, U.S. Attorney Patrick J. Fitzgerald defended it and University of Chicago Law School Professor Richard A. Epstein said that the whole controversy was for naught.

Section 215 requires the government to obtain a warrant from a federal judge before searching someone's records.

It also makes it illegal for anyone who knows about the search to tell the suspect about it.

It is one of 16 sections of the Patriot Act that are set to expire at the end of the year. President Bush has threatened to veto any version of the bill that doesn't include all 16 sections.

Last week, the House voted to water down section 215 by forbidding the Justice Department to use any part of its budget to implement it.

Stone, "a self-confessed liberal," opened the discussion.

He said that he took issue with the White House's intransigence on the Patriot Act.

The legislation "was rushed through Congress without debate" in the aftermath of the Sept. 11, 2001, attacks and, given that, it would be "surprising -- if not implausible" that some parts of it aren't in need of revision, Stone said.

Stone acknowledged that case law gives the government the right to request someone's private records, but he added that most of America's civil liberties are protected not by the Constitution, but by the government "restraining itself."

Section 215 is bad not necessarily from a Fourth Amendment perspective, but from a First Amendment perspective, Stone said.

"One of the things about free speech is that it's easily chilled," Stone said.

If someone knows that by checking out a book or signing a petition they might wind up the subject of a government file, they probably will not engage in those First Amendment-protected activities, Stone said.

Still another objection to section 215 is that even the government has asserted that it hasn't been used, Stone said.

"If we don't need it, it shouldn't be there. It simply shouldn't be a power that's left sitting around" waiting for "a U.S. attorney less responsible than Pat Fitzgerald" to abuse it, Stone said.

Fitzgerald went next.

Responding to Stone's utility argument, Fitzgerald said that it was like asking a veteran Chicago police officer to surrender his gun just because he's never fired it at a suspect.

Even before the Patriot Act was passed, library records were used in the investigations of the Unabomber, the Gianni Versace homicide, abortion-clinic bomber Eric Rudolf and even al-Qaida, Fitzgerald said.

Putting libraries out of the reach of prosecutors is dangerous, Fitzgerald said.

"Do we really want to create a safe haven, where you tell a terrorist that the one place you can go in America and know that you won't be investigated -- or someone will wipe the slate clean when you're done -- would be a library?" Fitzgerald asked.

In protest against the Patriot Act, many librarians are said to be erasing their records daily.

Prosecutors routinely obtain such records, without judicial warrants, in criminal cases. Why should the standards be different in terrorism investigations, Fitzgerald asked.

Critics of the act have succeeded in panicking people over its scope and scale, Fitzgerald said.

He said that the act is often thought of as a "spring break for prosecutors" when in fact it has more rigorous requirements than most other kinds of criminal law.

For instance, section 215 requires all "library" warrants to be reported to Congress, after being approved by a federal judge. Fitzgerald said that his office issues hundreds of grand jury subpoenas for private records every day, without consulting judges, congressional representatives or suspects.

Epstein spoke last.

He said that he would vote to renew section 215 of the act on the same grounds that Stone would vote to cancel it.

When a law is being created, it should be weighed by its potential for abuse, Epstein said, but when a law is subject to renewal, it should be weighed according to its actual record of abuse.

Since section 215 has been on the books for four years and it hasn't been abused, Epstein said, he saw no reason not to keep it.

Epstein said he did not have a per se objection to Stone's argument for making "probable cause" the standard for issuing section 215 warrants.

He added, though, that he thought Stone's concerns over civil liberties violations were not validated by the government's record.

Epstein said he felt like the rabbi who, asked to mediate a dispute, heard each side and, after each man had presented his case, told both, "You're right."

When a third man came to the rabbi and said that both men could not possibly be right, the rabbi replied, "You're right, too."

Speaking after the debate, Epstein said, "This whole thing is overblown."

Tuesday's debate was moderated by WBBM radio's political editor, Craig N. Dellimore.

Copyright 2005 Law Bulletin Publishing Company

Geoffrey R. Stone
Richard A. Epstein