BY DAN
KENNEDY
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Thursday, November 18, 2004
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.
posted at 11:22 AM |
1 comments
|
link
1 Comments:
As usual, Jacoby is a little mixed up.
A law (or section of one) that is badly crafted
and unnecessary begs to be criticized--nothing
unusual about that. Ashcroft's dept. only
stooped to calling us "hysterical" "dupes" of the
ACLU because the ALA is largely female.
So sorry, we didn't feel "chastened" when we were
told Section 215 hadn't been used--far better to
file an FOIA request. And according to records
released in June from that request filed in
October 2003 on behalf of the ACLU and other
organizations, Section 215 *has* been
specifically used. The documents are online.
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=15959&c=262
And to correct the record, what the Library
Journal editorial called "great for PR" was not
the ALA's attack on Ashcroft, but Ashcroft's
attack on the *ALA*.
http://www.libraryjournal.com/article/CA339610?display=EditorialNewsMore&industry=Editorial&industryid=1992&verticalid=151&starting=9
-- Another hysterical librarian
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Dan Kennedy is senior writer and media critic for the Boston Phoenix.
