"Anyone who uses the public libraries around Charlottesville is likely to read about the USA Patriot Act and one of its unusual secrecy provisions before borrowing a book or browsing the Internet.

The massive 2001 law, signed by President Bush 45 days after 19 hijackers killed about 3,000 people and scared and angered the nation into a new consciousness of terrorism, has itself frightened and disturbed many Americans.

The nation's often-shifting balance between individual rights and national security concerns may be moving back slightly in the direction of observing constitutional rights, according to legal and political experts.

Library patrons can hardly miss new notices, posted the past week in area branches, about the act's Section 215 provisions, under which "records of books and other materials borrowed from this library, as well as Internet activity in this library, may be obtained by federal agents. This federal law prevents library staff from informing you if records about you have been obtained by federal agents."

Although library and bookstore records can now be accessed secretly, the Jefferson-Madison Regional Library "will continue to do everything it can to protect the privacy of library records," said director John Halliday. "Because of the limited scope of the library's record keeping, I do not expect any requests from federal agents to examine library records."

But while the signs in libraries are the law's most visible symbols, the Patriot Act's secrecy provisions, including those allowing secret house searches to investigate nearly any crime, are parts of the law that have Democrats and Republicans pushing to trim some of the law's most controversial powers. Congress is debating a House-passed measure to cut the funds to enforce the "sneak-and-peek" provisions given federal authorities in the law.

The law allows "sneak and peek" searches that generally involve a surreptitious entry to examine, photograph or copy material but not to seize property. A court issuing a search warrant for evidence of a crime could order that a suspect not be notified until later if immediate notice were to pose a risk of injury, destruction of evidence or harm to an investigation.

Attorney General John Ashcroft's recent 16-city tour to defend and promote the Patriot Act as a bulwark against terrorism did not impress critics, including conservative Rutherford Institute founder and president John W. Whitehead of Charlottesville.

"Let's write a law that complies with the Constitution," Whitehead said. "The fact that Ashcroft is out on the road promoting the Patriot Act shows that a good thing is happening, that Americans are questioning their government."

Patriot Act powers

Americans are less willing today to give federal authorities new and secret national security tools than they were in the year after terrorist hijackers slaughtered innocent civilians in New York, Pennsylvania and Virginia, experts agree. A few of what critics call excesses in Patriot Act powers are being quietly discontinued by the Bush administration, said Robert M. O'Neil, a First Amendment scholar and University of Virginia law professor.

The administration successfully avoided U.S. Supreme Court review of a section of the Patriot Act by arguing that conflicting rulings on it from different circuits were made fairly moot by a decision to simply stop holding closed deportation hearings, O'Neil said.

After conducting about 600 cases involving closed hearings, the administration argued that "we've done virtually all the closed deportation hearings we've planned to do ? and only planned three more," he said. The court was probably not anxious for a swift Patriot Act review but eventually may not be so reluctant once a clearer record is established, O'Neil said.

On balance, the First Amendment Center director and former UVa president said, the Patriot Act "is certainly not a good thing. There are too many troubling provisions" that involve excessive secrecy, seizure of individuals' business and library records, forbid legal counsel and allow undisclosed searches and court hearings, O'Neil said.

Trampled rights

Throughout America's history, individual liberties protected by the Bill of Rights have started to become trampled for some whenever the nation feels threatened, said UVa constitutional law professor A.E. Dick Howard.

"If one goes back to the beginning of the republic, one finds a constantly shifting balance between individual liberty and national security," Howard said. "The enactment of the Alien and Sedition Act of 1798 was opposed by Thomas Jefferson and used by Federalists to jail people for seditious statements that seemed to be in support of the French or were deemed un-American," he said.

Americans felt threatened by people who might draw the young nation into a war between England and France, he said. Jefferson pardoned individuals jailed under the act as soon as he was inaugurated president in 1801.

President Lincoln "simply ignored" court decrees and suspended habeas corpus to jail individuals in Union states in violation of their rights in time of war, Howard noted. After the Civil War, Lincoln's arguably excessive use of war powers faded as issues if not precedents. Howard noted that national security is necessary for individuals to enjoy their rights, which do change in time of war. "National security is a fundamental requirement of a civilized state. Striking the right balances is difficult."

Japanese-Americans with no loyalties other than to this country were interned in California during World War II and the Supreme Court "essentially deferred to executive judgment, to military judgment," he said. "Now, after the fact, we know there was simply no plausible evidence of [disloyalty]. They were loyal Americans."

"After World War II, there was the so-called red scare and laws were passed that were considered to have widely violated civil rights," Howard said.

Decision of the courts

The Patriot Act's treatment of some American citizens as enemies or combatants involves questions of access to witnesses, access to legal counsel and secret versus public proceedings. These point out some of the law's largely procedural questions that courts must wrestle with, he said.

"I think we will see how bold the courts are willing to be" in areas involving national security or foreign policy where they are often somewhat reluctant to tread, Howard said. The Supreme Court "is a conservative tribunal, but it is also a very self-assured court" and some checks and balances might be forthcoming on Patriot Act powers from Congress and the courts, he said.

As for the court of public opinion, "It seems there are more members of the public who are not willing to give the administration a blank check," he said.

Although Howard said Congress may play "a role of not being totally acquiescent," UVa political scientist Larry J. Sabato said he does not see any major rollbacks likely at the moment.

"Given the repeated terrorist attacks and scares at home and abroad, and given Republican control of the presidency and both houses of Congress, there's very little chance that the Patriot Act will be weakened," Sabato said. Should Bush lose the White House in 2004 or his party lose control of either chamber in Congress, "then the most stringent provisions of the Patriot Act could be eased, but it will take something that big electorally to change the current statute, so committed is the Bush administration to it."

Fifth District Rep. Virgil H. Goode Jr., R-Rocky Mount, said he could vote to roll back some of the most stringent provisions, as could many other Republicans.

"You've got criticism on both sides," Goode said. He said he did not join 112 other Republicans in July voting to cut funding for the section allowing searches with delayed notification. Goode said the law should be kept and possibly strengthened as it applies to non-citizens.

"I think the provisions on citizens should be less onerous," he said Wednesday. "I think the Patriot Act should be applied to non-citizens."

Thomas Morris, President of Emory and Henry College and a Virginia political scientist, said Americans are trying to find a proper balance between individual liberties and national security concerns. "At least we worry about it in this country and talk about it and come back and rebalance," Morris said." (Bob Gibson, The Daily Progress, September 11, 2003)

Contact Bob Gibson at (434) 978-7243 or bgibson@dailyprogress.com.