First to speak was O'Neil, who is currently the director of the Thomas Jefferson Center for the Protection of Free Expression. O'Neil was formerly a clerk for both Supreme Court Justice William Brennan and the president of the University of Virginia.
O'Neil began the discussion by explaining what he termed the "four basic points" about the version of the Patriot Act passed by Congress shortly after Sept. 11, 2001. He began with his first point: "The Patriot Act could be much worse than it is" His second point, however, was a refutation of sorts: "The Patriot Act might have become much better than it is."
O'Neil's third point was that when certain provisions of the Patriot Act expire on Dec. 31, the new provisions Congress is considering will likely be less restrictive of the public's civil liberties. O'Neil's final point was that the courts are likely to have the last say if certain provisions clearly constitute civil liberties' violations.
Concerning his first two points, O'Neil explained that eight days after 9/11, then-Attorney General John Ashcroft demanded that Congress pass the Bush administration-sponsored Patriot Act within one week and without change.
However, O'Neil added that Sen. Patrick Leahy (D-Vt.), formerly the chairman of the Senate Judiciary Committee, succeeded in effecting certain changes. One change was the procurement of a "sunset clause" on certain provisions, guaranteeing that some clauses would expire after four years. Another Leahy victory was the "fairly rigorous reporting requirements" that were added to the act, providing a "substantial check" on federal officers taking advantage of the less stringent investigation requirements.
Regarding his last two points, O'Neil noted that the proverbial tide may have already begun to turn. A recent article confirmed that "seven states and 389 cities and counties have passed resolutions condemning the U.S. Patriot Act for attacking civil liberties," said O'Neil. O'Neil said that he firmly believes the courts will intervene if such attacks become violations. "The outcome of court trials will not be in keeping with what the Congress had in mind when it passed the Patriot Act," he said.
Next to speak was Caldwell-Stone, the current deputy director of the American Library Association Office for Intellectual Freedom and a former appellate litigator in Chicago. Caldwell-Stone explained that the Patriot Act makes it much easier for FBI agents to gain access to bookstore records and libraries' Internet activities because the FBI no longer needs a grand jury warrant. Instead, the FBI merely needs a warrant from the Federal Intelligence Surveillance Act (FISA) court, which holds trials for cases prosecuted under the Patriot Act.
Caldwell-Stone argued that under the former grand jury system, "a library had the right to challenge a subpoena in court if it was too broad or unjustified." However, Caldwell-Stone added that such legal protections are not provided under the current system. "It is impossible to challenge a FISA decision," she said.
In particular, Caldwell-Stone focused on Section 215 and Section 505 of the Patriot Act. Caldwell-Stone argued that Section 215, informally known as the "library provision," authorizes the FBI "to conduct surveillance of anyone suspected for anything."
Caldwell-Stone said that Section 505 "raises the greatest concern for libraries" since it expands the FBI's authority to conduct an investigation without any prior judicial review. She explained that the FBI would be able to walk into homes and conduct an investigation without informing the residents.
Caldwell-Stone concluded that both sections go against state laws regarding library records by subjecting library patrons to, in certain instances, unfair surveillance. They "represent a critical shift from the democratic spirit of this country … and upend not only checks and balances, but the presumption of innocence," she said.
Last to speak was Lyons, a former FBI agent and the current associate division counsel at the FBI office in New York. Lyons began by emphasizing a crucial terrorism-related gap in the American legal codes. "Before the passage of the Patriot Act, it was legal to wiretap bank robbers and drug dealers but illegal to wiretap terrorists," he said. He pointed out that such a scenario greatly endangered the lives of the American people and necessitated legislation that strengthened the capabilities of anti-terrorism officials.
Responding to several of Caldwell-Stone's criticisms, Lyons first defended the FBI's secret investigations. "The need for secrecy is to thwart criminal behavior," he said. According to Lyons, if a terrorist suspect knows that the FBI is wiretapping his conversations or is going to raid his house, the effectiveness of the FBI's efforts will be greatly diminished. Lyons provided the same justification for the permanent gag order, stating that any other modus operandi might jeopardize the "effectiveness of the search."
In addition, Lyons refuted Caldwell-Stone's statement that the FBI has the power to investigate anyone at any time. He explained that "the FBI has to give a written affidavit to the FISA court in order to get wiretap permission." He further explained that FBI written statements have to meet a certain standard to gain approval from the various FBI officials who scrutinize the statements prior to submission to the FISA court.
Lyons also explained that although the law itself does not require a reasonable cause for examination, FBI guidelines require reasonable cause to search a suspect's records. "We need a specific indication that the individual is involved in terrorism or criminal behavior," he said.
Overall, students and faculty members attending the event offered positive reviews. Chase Tanenbaum '09 said that he gained a better understanding of the Patriot Act from the forum. "It was very informative," he said. "O'Neil had a strong voice of moderation, and both Ms. Caldwell-Stone and Mr. Lyons raised really good points. She succeeded in laying out the abuses, while he rightly noted that there were safeguards in place."
George agreed with Tanenbaum, adding that the event had a good turnout. "Yes, [it was] definitely successful. Many people showed up and it was a varied audience," he said. "Many said they found the event very informative and especially useful to have different informed viewpoints on the issue."
The forum was organized by the Amherst chapter of the American Association of University Professors and the Robert Frost Library, and was funded by the Library and the Amherst College Office of Diversity.