Ashcroft Says Patriot Act’s Search Clause Was Never Used

Declassifying information in a bid to defuse the growing debate over the USA Patriot Act, the Justice Department said Thursday that it had not yet used a provision of the law that has been criticized as intrusive of the rights of ordinary citizens.

The provision, known as Section 215, empowers law enforcement authorities in terrorism investigations to obtain individuals’ business records and other information through a secret tribunal -- known as the Foreign Intelligence Surveillance Court -- without first having to establish probable cause that a crime was committed.

Librarians, civil liberties’ groups and others have decried the provision, saying it gives the government too much power to investigate the lives of people not directly involved in suspected terrorist activities. The American Library Assn. has been a particularly vocal critic, calling the section a license for the government to check out the reading habits of innocent people. Justice officials previously indicated that they had used the law sparingly, but had declined to release specific data, citing national security concerns.

On Thursday, U.S. Atty. Gen. John Ashcroft said he had decided to declassify the number of times Section 215 had been used “to counter the troubling amount of public distortion and misinformation” surrounding the law, according to a memo from Ashcroft to FBI Director Robert S. Mueller III declassifying the information.

“The number of times Section 215 has been used to date is zero,” the memo said.

In a speech Monday, Ashcroft chided the library association for engendering “baseless hysteria” about how the provision was being implemented.

Emily Sheketoff, associate executive director of the library association’s Washington office, said the group was pleased that Ashcroft chose to release the data, but that the lack of use of the provision proves the group’s point -- that it is unnecessary and represents a dangerous threat to civil liberties with little law enforcement upside.

“We do think this ‘zero’ means there is no need to have the law on the books as it is,” she said.

Rep. Bernard Sanders (I-Vt.) has introduced legislation in the House that would exempt librarians from the reach of Section 215, and Sheketoff said she hopes the Justice Department will now throw its weight behind the amendment.

“We are sort of surprised by the number,” Sheketoff said. “They fought for two years not to talk about what they were doing in libraries,” she said, adding the government has other powers to investigate library records, and may be using them.

The American Civil Liberties Union, which in July filed a lawsuit in federal court in Detroit alleging that Section 215 violated 1st Amendment guarantees of free speech and religious association, said the fact that Ashcroft and the Justice Department had not yet used the law would not affect the suit.

“The risk is still as much a risk as ever.... He could begin using it this afternoon,” said Ann Beeson, the ACLU’s associate legal director. “The case will not become moot until Congress repeals the law or John Ashcroft certifies in writing that he will never use it against our clients or anyone else.”

Beeson added that courts have previously intervened against statutes that on their face violate the Constitution even though they have not been employed, citing the U.S. Supreme Court’s 1997 decision striking down a federal law making it a crime to transmit pornography via the Internet.

The Justice Department’s disclosure comes as the Bush administration is seeking additional terrorism-fighting powers beyond the Patriot Act, which was approved overwhelmingly by Congress six weeks after the Sept. 11 attacks. In a speech last week, President Bush called on Congress to approve legislation that would permit the Justice Department to issue administrative subpoenas to gather information in terrorism cases. That proposal is even more controversial than Section 215 because there is no requirement that the subpoenas be reviewed by a judge before they are issued.

In the wake of congressional and other studies this year raising questions about law enforcement and intelligence breakdowns before Sept. 11, and the Justice Department’s treatment of hundreds of illegal immigrants in the weeks after the attacks, members of Congress seem generally lukewarm to the idea of giving the department added authority anytime soon. Ashcroft has been implying in an ongoing series of speeches around the country that the department has adequate authority to do its job, citing numerous prosecutions and other steps it has taken to disarm terrorists.

In a prepared statement Thursday, Rep. F. James Sensenbrenner Jr. (R-Wis.), chairman of the House Judiciary Committee, said that “regardless of today’s disclosure, the House Judiciary Committee will continue aggressive oversight of the Justice Department and how it implements the USA Patriot Act.”

“I have long supported disclosing this information as helpful to the public without compromising our anti-terrorism efforts and applaud this decision by the Justice Department,” Sensenbrenner said. I hope this disclosure will help refocus the public debate on the facts about the USA Patriot Act and the larger war on terrorism. For too long, inflamed rhetoric, erroneous conspiracy theories, and misinformation has characterized much of the discussion about Section 215.”

Sanders, the congressman who co-wrote the pro-library legislation, called the disclosure “an important first step,” and said Congress should follow up by amending the law.

“The issue is not just what the Department of Justice has done in the past but what it could do in the future as a result of this dangerous provision,” Sanders said in a statement. “The bottom line is that the federal government should not be able to walk into a library or bookstore without probable cause and obtain the reading records of the American people.”