Ashcroft Declassifies Use of a Patriot Act Power

In recognition of growing public distrust of the government's expanded powers under the Patriot Act, Attorney General John Ashcroft announced that the Justice Department has not used Section 215 of the Patriot Act. Ashcroft's disclosure came as part of his effort to quell concerns that the law goes too far in giving the federal government powers to track the public's reading habits in bookstores and libraries and seize an organization's computers, files, and "any material thing" as part of an ongoing investigation. Critics are pushing to roll back the Patriot Act and calling for greater oversight of how the federal government is using what the Attorney General called “much-needed new powers.” But don't expect that the Attorney General's revelation signals a new era of transparency. In a memorandum (posted online by the Center for Democracy and Technology) to Federal Bureau of Investigations Director Robert S. Mueller, Ashcroft asserts, "it is generally not in the interest of the United States to disclose information of this nature." The Attorney General's statement raises doubts whether he plans to update the public on a regular basis, if at all again, on uses of Section 215. The narrow construction of Ashcroft's statement also raises more questions than it answers. If Section 215 powers have never been invoked, how has it been useful in fighting terrorism? Ashcroft's statement does not address whether the Justice Department is getting greater voluntary cooperation from libraries, bookstores and other businesses in their investigations without having to formally invoke Section 215. Confusion about the government's powers may also be making a difference. The Patriot Act forbids those hit with an order to produce documents under the Patriot Act from talking about it. This gag order does not apply to people hit with subpoenas under criminal investigations unrelated to the Patriot Act. Librarians report fewer incidents of law enforcement officials contacting librarians as part of criminal investigations. But how many times have law enforcement officials contacted libraries and bookstores without invoking the Patriot Act? We know of more than one case in which information was removed from libraries that government officials deemed "sensitive" and no longer appropriate for public dissemination. Unclear is whether these visits to libraries would have been counted as part of a criminal investigation, or how many similar visits have occurred. The fact that Section 215 has never been invoked may give some small comfort to those who fear the Patriot Act gives government unchecked and out-of-balance powers. In the end, such questions -- and the underlying public distrust of government -- can be put to rest only when government is less secretive, reports forthrightly on its use of the tools our laws grant it, and thereby shows a stronger commitment to the democratic process.
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