Was Focus of Patriot Act Debate a Dodge?

As lawmakers debated the renewal of the USA Patriot Act in recent months, critics of the terrorism-fighting law focused on potential abuses stemming from a section they dubbed the “library provision.”

That section, which has been in effect, alarmed civil libertarians because it granted the government broad powers to obtain records about individuals in terrorism investigations -- even from libraries, bookstores and other places that might reveal personal habits.

But now, as Congress prepares to vote on extending key parts of the Patriot Act -- with what civil libertarians say are few substantive changes to protect the rights of ordinary citizens -- some critics of the act are asking whether they miscalculated.

Although focus has been on extending the act, the library provision has turned out to be rarely used by authorities. Instead, the tool of choice for federal agents has been a more obscure measure, a form of administrative subpoena known as a national security letter.

Unlike the library provision, national security letters have been used thousands of times, although that fact has until very recently been virtually lost amid the intense discussions on renewing the controversial law.

The kinds of information the government can obtain through national security letters includes requiring telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce often comprehensive and detailed records about their customers or subscribers.

Some critics of the Patriot Act, which was first approved after the Sept. 11 terrorist attacks, wonder whether members of Congress and the Bush administration essentially manipulated the debate in part by selectively releasing data about the government’s use of various sections of the law. They also wonder whether fuller disclosure could have aided the cause of critics and resonated more with the public.

“The focus on [the library provision] turned out to be a gift for the Justice Department,” said Peter Swire, a law professor at Ohio State University and critic of the Patriot Act. “With so much attention focused over there, we never got the same political pressure to learn about the use of national security letters.”

Critics of the act say this is because information about national security letters was under wraps until after the House and Senate had passed their bills, and because the government continues to maintain secrecy about their use.

National security letters have been around since the 1970s, although the Patriot Act made it easier for the FBI to issue them. The Washington Post reported last month that the FBI was issuing 30,000 such letters every year -- a hundred-fold increase since before the Sept. 11 attacks.

The Justice Department has called that figure “erroneous.” Saying the information is classified, officials have declined to reveal what they say are the true numbers, although many legal and national security analysts contend they are substantial.

By contrast, the department has declassified information about the use of the library provision, showing that it had been used a few dozen times at most.

The government contributed to “an information vacuum,” said Lisa Graves, a legislative counsel for the American Civil Liberties Union, who has been one of the organization’s primary advocates in the Patriot Act debate.

“Based on everything we know now,” Graves said, national security letters are “certainly currently more worrisome” and “more problematic for privacy on a grander scale,” compared with the better-known library provision.

The Justice Department strongly disputed the suggestion that it was withholding information to affect the outcome of the debate.

“Any substantive dialogue about the use of national security letters should focus on the clearly articulated safeguards included in the bill regarding their use,” said department spokeswoman Tasia Scolinos.

“A last-minute effort by critics to focus on long-classified numbers is merely an effort to distract from the real issue here, which is: ‘Does the bill contain the proper safeguards?’ The fair, unequivocal answer is that it does.” Last week, congressional negotiators agreed to extend 16 expiring provisions of the law, making all but two permanent, including a provision that permits intelligence agents and prosecutors to share information. The agreement would also extend congressional oversight of the Justice Department by requiring performance reports and audits.

The legislative compromise could still unravel; a bipartisan group of senators has threatened a filibuster, partly out of concern about the growing use of national security letters. Both chambers of Congress are set to vote this week.

President Bush touted the importance of extending the law in his weekly radio address Saturday, calling the law a “strong weapon for going after the terrorists” and one that has “saved American lives.”

He also said the legislation had a number of built-in safeguards to protect civil liberties, citing the requirement that terrorism investigators win approval from a federal judge to wiretap phones or search property.

The library provision, known formally as Section 215 of the Patriot Act, broadened the materials that authorities could obtain in terrorism probes -- “any tangible thing” could be sought, in the lexicon of the section -- and loosened the requirements that officials had to meet to obtain approval from a judge.

That became a rallying point for critics, because the section appeared broad enough to capture library records, permitting the government to pry into people’s reading habits.

Although the section has been used a few dozen times, national security letters, by contrast, apparently became a major growth industry for government terrorist hunters after Sept. 11.

Although narrower in scope, the letters are easier for the government to obtain, because they do not require the approval of a judge and can be issued on the authority of an FBI agent. In some cases, officials have apparently used the letters as an alternative to the more closely scrutinized library provision.

The ACLU is representing a man who manages digital records for three dozen Connecticut libraries, and who is fighting a sweeping national security letter request for information about people who used a specific computer at a branch of one of the libraries.

Some observers said that the emphasis on the library provision was understandable, given the sweeping mandate that it appeared to give federal agents in obtaining records and other information.

“The change ... really strikes at the heart of your average civil libertarian,” said William Banks, a law professor and national security expert at Syracuse University law school.

“It was harder for the average person, even the average advocacy group, to get a handle on what national security letters accomplished, and the extent to which they might be intrusive.”

The compromise bill that Congress will consider next week includes changes that affect businesses that receive national security letters. The legislation would formalize procedures for recipients to challenge the letters, for example, and establish first-time criminal penalties in some cases for disclosing their existence.

Graves of the ACLU said the changes were a step backward, because they included new rules that were stacked against those challenging the letters. “We would be better off without them,” she said.