Hype, hysteria and the Patriot Act

One of the most unfairly maligned provisions of the 2001 Patriot Act is section 215, which permits the FBI to apply for a court order requiring production of library and business records in the course of a terrorism investigation. According to Stanford Law School Dean Kathleen Sullivan, the provision is downright “threatening.” The American Civil Liberties Union (ACLU) asserts that, under section 215, “the FBI could spy on a person because they don’t like the books she reads, or because they don’t like the Web sites she visits.”

The above is nothing more than hyperbole that bears little relation to the facts. Long before September 11, the government had the ability to obtain these records in ordinary criminal investigations. As the Justice Department points out, “grand juries investigating ordinary crimes traditionally have had the power to issue subpoenas to all manner of businesses, including libraries and bookstores.” For example, in the Unabomber investigation of the mid-1990s, federal grand juries subpoenaed library records at four universities and a public library in order to determine who had checked out the books cited in the “Unabomber Manifesto” issued by the killer. Section 215 of the Patriot Act made this investigative tool available for terrorism and foreign intelligence investigations.

Moreover, this section of the act actually imposes more restrictions on its uses than a federal grand jury subpoena for the same records. A grand jury subpoena is issued without prior judicial review or approval. By contrast, a court must expressly authorize the use of section 215 in order to obtain business records.

Nor can an FBI agent merely go sauntering into a library or flight school in order to demand records. Before the FBI can obtain such information, it must first convince the Foreign Intelligence Surveillance Act (FISA) court which oversees these investigations that the documents sought are relevant to combating international terrorism or secret intelligence activities. In addition, before the FBI can even approach the FISA Court with a request to conduct this surveillance, agents are required to go through numerous bureaucratic and judicial hoops. In order to investigate an American citizen under FISA, the government must show that he is knowingly engaged in terrorism or espionage.

Critics of the Patriot Act claim that section 215 is objectionable because libraries and other organizations cannot challenge the FISA court’s order or inform the target of an investigation, as is the case in ordinary criminal proceedings. But, as Manhattan Institute scholar Heather MacDonald notes in the current issue of City Journal, time and secrecy are uniquely important in anti-terrorism investigations. “The department wants to know if an al-Qaeda suspect has consulted maps of the Croton reservoir and researched the toxic capacities of cyanide in the New York Public Library not in order to win a conviction for poisoning New York’s water supply but to preempt the plot before it happens,” she writes. “The battleground is not the courtroom but the world beyond, where speed and secrecy can mean life or death.”

It would be a serious mistake to cripple the Patriot Act based on misinformation about the law and misunderstandings about the real-world challenges the law-enforcement community faces in preventing future September 11ths.