At the Democratic presidential debate in Baltimore on September 9, North Carolina Sen. John Edwards delivered an impassioned denunciation of the Patriot Act, the administration’s key law-enforcement tool in the war on terror. Edwards said he wanted to see a “dramatic revision” of the act, which he said gave Attorney General John Ashcroft the power to invade the privacy of ordinary Americans under the guise of fighting terrorism. “The last thing we should be doing is turning over our privacy, our liberties, our freedom, our constitutional rights to John Ashcroft,” Edwards said. “The notion that they are going to libraries to find out what books people are checking out, going to book stores to find out what books are being purchased…runs contrary to everything we believe in this country.”
What made the statement so extraordinary was that even as he leveled his accusation, Edwards either knew or should have known that the Justice Department had never — not even once — used the Patriot Act to go into any library and obtain anyone’s records. As the attorney general revealed Wednesday, the Department has never used Section 215, the controversial portion of the act that allows terrorism investigators to view library, business, medical, or other records after receiving a court’s permission to do so. “The number of times Section 215 has been used to date is zero,” Ashcroft wrote in a memo to FBI Director Robert Mueller.
That information was classified until Ashcroft’s memo was made public. But according to administration sources, the Justice Department last May gave the information — while it was still classified — to the Senate and House intelligence committees, as well as to the Senate and House judiciary committees. Edwards serves on both the Senate intelligence and judiciary committees, and either knew or should have known that government agents were not “going to libraries to find out what books people are checking out.”
In addition, any member of the Senate or House can ask the intelligence committees for a briefing on such confidential material, meaning that all the other Democratic presidential candidates in Congress — Lieberman, Graham, Kerry, Gephardt, and Kucinich — also had access to the Section 215 information.
“It’s not as though we’ve been hiding the ball,” says one administration official. “The information has been over there [on Capitol Hill].”
Lawmakers would not have been allowed to reveal the classified information publicly, but they might have tempered their criticisms, knowing the Section 215 had never been used. Nevertheless, they kept up the attack.
For example, earlier this month, Democratic presidential candidate Sen. Joseph Lieberman said, “Is the government snooping through people’s library records? Inappropriately searching people’s belongings? George W. Bush isn’t answering these questions. As usual, he’s keeping secrets and fueling suspicions. This administration’s ‘Don’t ask, don’t tell’ approach to governance should make every American leery of handing over new authority to John Ashcroft before we know how he is using the power he already has.”
Ashcroft made the decision to declassify the Section 215 information after making a nationwide speaking tour defending the act, which has come under damaging attack from the American Civil Liberties Union, several Democrats in Congress, and some Republicans as well. “I know you share my concern that the public not be misled regarding the manner in which the U.S. Department of Justice, and the FBI in particular, have been utilizing the authorities provided in the USA Patriot Act,” Ashcroft wrote in the memo to Mueller. “Public confidence in law enforcement is of paramount importance. That is why I have taken this action [declassification], despite the fact that it is generally not in the interest of the United States to disclose information of this nature.”
In the memo Ashcroft also alluded to the fact that lawmakers knew about Section 215, yet still accused the administration of rifling through library and other personal records. “While Congress has regularly been informed regarding the number of times Section 215 has been used, and while individual members of Congress have been able to review that information, to date, we have not been able to counter the troubling amount of public distortion and misinformation in connection with Section 215,” Ashcroft wrote. “Consequently, I have determined that it is in the public interest and the best interest of law enforcement to declassify this information.”
After Ashcroft’s decision, the ACLU declared victory, but stopped short of admitting that its accusation of Bush administration “snooping” in libraries was unfounded. Calling Ashcroft’s decision a “small step,” Laura Murphy, director of the ACLU’s national office, said, “Let’s be clear, whether they’ve snooped around in 16 libraries or 1,600, having that power without meaningful judicial oversight is still wrong in America.”
It is not clear how Murphy came up with the figures 16 and 1,600 libraries. Ashcroft said definitively that Section 215 has not been used even once — in libraries or anywhere else — much less 16 or 1,600 times.