The House of
Representatives recently considered "The Freedom to Read Act,"
which would limit the application of section 215 of the Patriot
Act. The legislation, sponsored by Rep. Bernie Sanders (VT-Ind.),
would prevent funds from being used to apply "for an order
requiring the production of library circulation records, library
patron lists, book sales records, or book customer lists." Sanders'
legislation would limit the government's ability to conduct
investigations relevant to terrorist and foreign activities that
pose a substantial threat to United States security. Instead of
protecting the privacy of citizens, it would turn libraries and
other institutions into potential havens for terrorists.
Section 215 of the
USA Patriot Act allows a specially designated federal court created
under the Foreign Intelligence Surveillance Act of 1978 (FISA) to
approve a search for "any tangible thing (including books, records,
papers, documents, and other items) for an investigation to protect
against international terrorism or clandestine intelligence
activities" so long as any investigation of citizens is not based
solely on activities protected by the First Amendment. The goal of Sanders'
legislation is to prevent court-approved lawful searches of certain
library records, for fear that the law will violate borrowers'
privacy and civil liberties.
Like the rest of
the Patriot Act, this section was designed to give law enforcement
the best tools to collect intelligence effectively. As Deputy
Attorney General James B. Comey said in testimony to the House
Judiciary Committee earlier this month, "You want to catch a
terrorist with his hands on the check instead of his hands on the
bomb. You want to be many steps ahead of the devastating event. The
way we do that is through preventive and disruptive measures, by
using investigative tools to learn as much as we can as quickly as
we can and then incapacitating a target at the right moment."
The Patriot Act
has been at the center of a storm of hype and misinformation since
its passage. Sanders' legislation perpetuates the myth that the
Patriot Act is an overly broad law that gives the federal
government police state powers. In reality, the activities of
ordinary Americans are not of any interest to terrorism
investigations. Moreover, there are already significant protections
built into the USA Patriot Act that prevent abuse:
-
First Amendment
rights are expressly protected in Section 501: "An investigation
conducted under this section shall not be conducted of a United
States person solely upon the basis of activities protected by the
first amendment to the Constitution of the United States."
-
Section 501 also
limits investigative powers to obtaining "foreign intelligence
information not concerning a United States person" or to protecting
"against international terrorism or clandestine intelligence
activities."
This ensures that investigative activity is aimed at terrorists and
others seeking to do harm to the United States, and not aimed at
citizens.
-
Section 215 also
provides for congressional oversight, ordering the Attorney General
to "fully inform" Congress on how, specifically, the Act has been
implemented.
With these
safeguards, the likelihood of abuse is slim. Though the ACLU has
cited alleged "abuses" of the USA Patriot Act, close review of
these allegations shows that "each matter cited by the ACLU either
did not, in fact, involve the USA PATRIOT Act, or was an entirely
appropriate use of the Act."
The tempest over
section 215 is puzzling. Attorney General Alberto Gonzales and FBI
Director Robert Mueller recently reported that the "FISA Court has
issued 35 orders requiring the production of tangible things under
section 215 from the effective date of the Act through March 30th
of this year.
None of those orders was issued to libraries and/or booksellers,
and none was for medical or gun records." With no evidence of
abuse, what drives the critics' campaign?
It is certain that
Sanders' act has the real potential to harm U.S. counterterrorism
efforts. As Assistant Attorney General William Moschella wrote in a
letter to Congress, bookstores and libraries "should not be carved
out as safe havens for terrorists and spies." He is right. The
"tools" of the USA Patriot Act, including section 215 are an
important part of the preventative effort to stop terrorist
activity in the United States.
Alane Kochems is
a Research Assistant, and James Jay Carafano,
Ph.D., is Senior Research Fellow for National Security and
Homeland Security, in the Kathryn and Shelby Cullom Davis Institute
for International Studies at The Heritage Foundation. Paul
Rosenzweig is Senior Legal Research Fellow in the Center for Legal
and Judicial Studies at The Heritage Foundation. Chris Molitoris
assisted in preparing this Webmemo.