In Defense Of Section 215
By Aaron Goldstein (08/09/03)
The USA Patriot Act (see http://www.eff.org/Privacy/Surveillance/
Terrorism_militias/hr3162.php) has been a source of considerable controversy since Congress enacted it in 2001 in the wake of September 11th. Critics have charged that the Patriot Act was hastily considered, strips Americans of their civil liberties and targets ethnic and religious minorities, Muslims in particular.
Recently much of the criticism of the Patriot Act has focused on one section of the legislation, namely Section 215. This section of the Patriot Act amends the Foreign Intelligence Surveillance Act of 1978 (an Act incidentally passed by a Democratic Congress and signed into law by a Democratic President). It allows the Director of the FBI or a designee to "make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment of the Constitution."
Prior to the amendments of the USA Patriot Act, the Act limited the FBI's purview in these matters to entities that contained travel information such as airline carriers, hotels, private storage facilities and vehicle rental facilities.
Opponents of this provision claims that it allows the FBI to monitor activities on your library card or when you sit down for a cup of coffee while sitting in one of those comfortable lounge chairs at Barnes and Noble.
Bernie Sanders, the socialist Congressman from Vermont, this past March introduced The Freedom to Read Protection Act for the purpose of exempting bookstores and libraries from Section 215.
More recently, the ACLU late last month filed a lawsuit against Attorney General John Ashcroft and FBI Director Robert Mueller concerning Section 215. The ACLU is focusing its attention on alleged civil rights violations against Muslim Americans. Ann Beeson, Associate Legal Director of the ACLU stated, "Ordinary Americans should not have to worry that the FBI is rifling through their medical records, seizing their personal papers, or forcing charities and advocacy groups to divulge membership lists. We know from our clients that the FBI is once again targeting ethnic, religious, and political minority communities disproportionately." Other plaintiffs in this case include the Islamic Center of Portland, Oregon, the Muslim Community Association of Ann Arbor, Michigan, Arab Community Center For Economic and Social Services and Bridge Refugee and Sponsorship Services (based in Knoxville, Tennessee).
At around the same time, Senators Lisa Murkowski (R-Alaska) and Ron Wyden (D–Oregon) introduced the Protecting the Rights of Individuals Act. Like Sanders' bill in the House, it would also modify Section 215.
The media has been getting in on the act as well. In July, the Milwaukee Journal Sentinel wrote in an editorial, "In the past, search warrants could be obtained only if a judge agreed that the authorities had good reason to make the search. Under Section 215, a judge in a secret court has no discretion to deny the request. What's more, a bookstore owner who surrenders documents to the federal government cannot disclose this fact to anyone, lest he or she be cited for contempt of court."
Nonsense.
Will the Milwaukee Sentinel Journal point out where in Section 215 it says a judge cannot deny the FBI's request? If they won't, I'll do it for them. Section 215 clearly states that a judge can approve the release of records "if the judge finds that the application meets the requirements of this section." Sounds like judicial discretion to me.
As for not telling the person affected by the search, Section 215 reads, "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section." Presumably the person who is the focus of an investigation would be in a position to produce the tangible items in question. Aside from that, I wouldn't want the neighborhood librarian telling every patron that I was the focus of some FBI investigation. There is also national security to take into consideration. If an improper disclosure of information can compromise national security, how else can the integrity of an FBI investigation into terrorist activity be maintained?
In an article that appeared in the Boston Globe on July 24th, Ellen Goodman argues, "But when the government has secret, unlimited access to anything you read, any website you surf at the library, it creates the sense that we are all being watched. And up the odds of catching the wrong fish."
More nonsense.
This presupposes that the FBI has nothing better to do than to randomly visit every Barnes and Noble in the country and conduct surveillance operations in every library in America. The FBI, like every other government agency, has finite resources. There is an infinite amount of information in circulation and there is no possible way the government can keep abreast of it all.
Steven Emerson, author of American Jihad: The Terrorists Living Among Us described his interaction in the early 1990's with an FBI agent in Oklahoma City after attending a conference where Hamas leader Khalid Misha'al called for jihad against Jews and the West. Emerson wrote, "I had some contacts in the FBI at this point and called one to see if he knew that all of this was going on. He said he didn't. Even if the FBI had been cognizant, however, there wouldn't have been much they could do about it, owing to the FBI's mandate to surveil (sic) criminal activity and not simply hateful rhetoric."
It is also important to note that Section 215 clearly states that an investigation cannot be conducted "solely upon the basis of activities protected by the first amendment to the Constitution of the United States." In other words, people who believe that they have been improperly investigated under Section 215 have recourse under the Constitution to seek an appropriate remedy in the courts.
The FBI, through the Attorney General, must also report to the Judiciary Committees of both the House and the Senate concerning how many requests were made to the courts and how many of these requests were accepted, rejected or amended.
No one wants the government to have excessive powers, but the primary job of government is to maintain security. In order for security to be maintained, the FBI needs the tools to be one step ahead of the terrorists. With terrorist organizations able to recruit members, to network, to organize and to fundraise using cutting edge technology at the edge of their fingertips, Section 215 is the legislative framework necessary to keep the government that single step ahead in the war against terrorism.
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