JACOBY'S INCOMPLETE ODE TO JOHN ASHCROFT. In his ode to outgoing attorney general John Ashcroft today, Boston Globe columnist Jeff Jacoby offers incomplete evidence on his client's behalf. For example, Jacoby professes revulsion that People for the American Way had once compared Ashcroft to the "virulent segregationists" of the old South, and that the Los Angeles Times had once published a cartoon of Ashcroft in Klansmen's robes.
What Jacoby leaves out is that, in an interview with the neo-Confederate publication Southern Partisan, Ashcroft expressed his admiration for Confederate president Jefferson Davis, and spoke up on behalf of the Stars and Bars as well. The other day I heard an old clip of Ashcroft saying that he regretted not having done "due diligence" on Southern Partisan before agreeing to an interview. But the views he expressed in that interview are in perfect congruence with the mission of the magazine.
But I probably wouldn't have bothered to dredge up that history were it not for Jacoby's assertion that civil libertarians are not telling the truth about Section 215 of the Patriot Act. Jacoby writes:
The American Library Association revved up a hysterical campaign against Section 215 of the law, claiming that it posed a dire threat to the privacy of library records. When it turned out that Section 215 (which doesn't mention libraries) had never even been invoked, the ALA was not the least bit chastened. Making war on the attorney general and the Patriot Act had turned out to be great for PR. As a gleeful editorial in Library Journal put it, "If we didn't have Attorney General Ashcroft, we would have to invent him."
Does Section 215 mention libraries? Why, no it doesn't. But look at what it does say:
The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may 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 to the Constitution.
Not libraries. Books! Records! Papers! Documents! And, of course, Other Items! The fact that these things are often found in bookstores and, you know, libraries is of no consequence, right?
Let's also consider the notion that you can't be investigated "solely upon the basis of activities protected by the first amendment to the Constitution." What does that mean? It's hard to say, but it shouldn't strike any fair observer as being particularly difficult to circumvent. As Dahlia Lithwick and Julia Turner wrote last year in a decidedly sober, non-hysterical analysis of the Patriot Act for Slate, "That means you can't have your records searched solely because you wrote an article criticizing the Patriot Act. But if you are originally from India and write that article, well, that's not 'solely' anymore is it?"
Then there is Jacoby's contention that Section 215 has "never been invoked." I've dealt with this before - most recently in August, when Globe columnist Cathy Young made the same mistake. It's true that Ashcroft's Justice Department claims it has never invoked Section 215. But a widely quoted (if apparently not widely enough) study found otherwise:
The USA Patriot Act of October 2001 and subsequent directives from Attorney General John Ashcroft have expanded the powers of federal law enforcement agencies. It is now easier for these agencies to obtain information about business records, including those of bookstores and libraries, and to monitor public meetings. Records of who has borrowed certain books or used public access computers (and for what purpose) are considered business records, although most libraries expunge information about what someone has borrowed once it is returned.
In the year after the World Trade Center and Pentagon attacks, Federal and local law enforcement officials visited at least 545 (10.7%) libraries to ask for these records. Of these, 178 libraries (3.5%) received visits from the FBI. The number of libraries queried fell significantly below the 703 libraries reporting such requests the year before the terrorist events. The actual number questioned in the past year may, however, be larger, because the USA Patriot Act makes it illegal for persons or institutions to disclose that a search warrant has been served. A warning about these secrecy provisions on the LRC questionnaire may have served, in some cases, as a deterrent to candid answers. Fifteen libraries acknowledged there were questions they did not answer because they were legally prohibited from doing so.
What's unclear is whether law-enforcement officials were specifically invoking the Patriot Act when they dropped by for a friendly visit. What sticks out is that the number of libraries reporting such visits went down - in all probability a response to the provision of the Patriot Act that forces libraries to remain silent. After all, how likely is it that the number of law-enforcement visits declined during the year after 9/11?
A bookstore owner once told me about his strategy for letting his lawyer know he'd been approached under Section 215 without breaking the law merely by making that disclosure: he'd call his lawyer every day to tell him that the FBI had not dropped by with a subpoena. That way, if the day came when he didn't call, his lawyer would know what happened.
Section 215 is a secretive law passed by a terrified Congress and implemented by a secretive administration. Neither Jeff Jacoby nor I know how many times and under what circumstances it has been used. For Jacoby to claim otherwise is disingenuous.