The Patriot Act has been the target of the most successful disinformation campaign in recent memory. The strategies used to attack Section 215 have all been used against other provisions; discredit those strategies here, and you have the key for discrediting them everywhere. So here, we go.
Strategy #1: Hide the Judge. Section 215 allows federal terror investigators to get records held by third parties — flight school enrollments, say, or driver's license records. It also broadened the categories of institutions whose records an intelligence investigator may seek, and it removed a previous requirement that the records concern an "agent of a foreign power." These changes reflect the post-9/11 recognition that lawmakers cannot anticipate what sorts of organizations or unwitting accomplices terrorists may exploit.
Heather MacDonald is a lawyer and a fellow at the Manhattan Institute.
Critics of Section 215 rarely mention the fact that before an FBI anti-terror agent can get third-party records, he must certify to a federal court that the documents are relevant to protecting against international terrorism or espionage AND that the investigation does not target an American based solely on First Amendment activity.
The ACLU, for example, warns that with 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. They could spy on her because she wrote a letter to the editor that criticized government policy."
This is nonsense. The chance that the Foreign Intelligence Surveillance Court, which oversees terrorism investigations, will approve a 215 order because the FBI "doesn't like the books [a person] reads . . . or because she wrote a letter to the editor that criticized government policy" is zero.
Strategy #2: Conceal Legal Precedent. Opponents also fail to disclose the fact that grand juries have long had the power to obtain the identical records without any kind of showing before a judge. The grand jury investigating Eric Rudolph's 1996 bombing of Atlanta's Olympic Park, for example, subpoenaed bookseller records that showed that Rudolph had purchased a book on bomb detonation. Section 215, by requiring judicial review and protecting pure speech, is more solicitous of privacy than the criminal subpoena power.
Patriot Act critics have provided no evidence that grand jury subpoenas have been abused to spy on Americans' reading habits; there is no reason to believe that Section 215 will be any more susceptible to abuse.
Strategy #3: Invent New Rights. Grand juries (and terror investigators) can obtain records or other items held by third parties because those records are not protected by the Fourth Amendment's privacy right. Once you have revealed your consumer preferences to a vendor or to your credit card company, a grand jury or an FBI agent can get your credit-card receipts without a warrant or "probable cause" to believe that a crime has been or is about to be committed. When critics charge that Section 215 violates the Fourth Amendment, they are inventing new rights.
The same analysis applies to bookstore and library records. They are not covered by the Fourth Amendment because they have already been disclosed to third parties. A New York grand jury subpoenaed library records in 1990, for example, for the Zodiac gunman investigation, as did a Florida grand jury in 1997 for the Gianni Versace murder case.
Terror investigators should have the same access to bookstore and library evidence as criminal investigators. An al Qaeda associate in New York used a library computer to communicate with cell members; 9/11 hijackers Nawaf al-Hazmi and Khalid al-Midhar reviewed airline reservations for their 9/11 flight at a New Jersey state college library computer; three more 9/11 hijackers are believed to have used Florida's Delray Beach Public Library in July 2001.
Investigators piecing together the 7/7 bombings in London have obtained evidence from an Islamist bookstore in Leeds frequented by three of the suicide attackers.
The Justice Department has already reaffirmed that the recipient of a 215 order may consult an attorney and challenge the order in court. What a 215 recipient may not do, however, is publicize the document request or tell the records' subject. This is perfectly appropriate. Preemptive terror investigations cannot be conducted in the news media. And telling a Mohammad Atta that the government wants to see his airline reservations is a sure-fire way to torpedo any chance the government has of unraveling his plot.
Section 215 orders are not designed to prosecute a crime after the fact but to gather intelligence on a terrorist attack before it happens. The provision protects civil liberties while modestly updating existing intelligence-gathering authority in light of the new reality of catastrophic terrorism. Section 215 should be reauthorized.