Location: Tulsa, Oklahoma, Tonga

Sunday, June 19, 2005

DOJ Ball

Our tax dollars, soldiering away in the War on Terrorism, support the Department of Justice website. Its page-top banner reads:

"Preserving Life & Liberty"

On 28 April 2005 United States Attorney Ken Wainstein, appearing on behalf of the DOJ, testified before House Committee on the Judiciary in hearings on reauthorizing PATRIOT Act provisions that are set to expire at the end of this year. One controversial provision, Section 215, allows law enforcement to obtain a secret, uncontested order from a clandestine court in order to search the business records of... just about anyone. The person on whom the court order is served may NOT disclose to anyone the anything about the order or the search-- including the fact of the order's existence.

From Mr. Wainstein's testimony:

To some, section 215 has become known as "the library provision". This moniker, however, is a gross distortion of the provision and makes about as much sense as calling all grand jury subpoenas "library subpoenas." Section 215 does not single out or mention libraries, and the Attorney General has recently declassified that as of March 30,2005, the provision had never be used to obtain library records.


The Department has not requested a section 215 order to obtain library or bookstore records, medical records, or gun sale records.

Should I feel comforted by this fact? Does the DOJ takes seriously its charge to preserve my liberty-- my right to free speech, to have access to a free press, and my right to privacy.

WAIT a minute-- Eric Lichtblau reports in tomorrow's New York Times that law enforcement has made at least 200 formal or informal inquiries to libraries for information on reading material and other internal matters since October 2001. The American Library Association conducted a study to determine how frequently federal, state and local agents are demanding records from libraries.

The study does not directly answer how or whether the Patriot Act has been used to search libraries. The association said it decided it was constrained from asking direct questions on the law because of secrecy provisions that could make it a crime for a librarian to respond. Federal intelligence law bans those who receive certain types of demands for records from challenging the order or even telling anyone they have received it.

As a result, the study sought to determine the frequency of law enforcement inquiries at all levels without detailing their nature. Even so, organizers said the data suggested that investigators were seeking information from libraries far more frequently than Bush administration officials had acknowledged.

"What this says to us," said Emily Sheketoff, the executive director of the library association's Washington office, "is that agents are coming to libraries and they are asking for information at a level that is significant, and the findings are completely contrary to what the Justice Department has been trying to convince the public."

The Times article details an incident at the Whatcom County Library System in northwest Washington where law enforcement attempted to fish for information from library records.

Joan Airoldi, director of the library district in Whatcom County, wrote an opinion column for the 17 May 2005 USA Today about the incident. Her piece exactly identifies the differences between a standard subpoena process and the process set out under Section 215.

It was a moment that librarians had been dreading.

On June 8, 2004, an FBI agent stopped at the Deming branch of the Whatcom County Library System in northwest Washington and requested a list of the people who had borrowed a biography of Osama bin Laden. We said no...


Undeterred, the FBI served a subpoena on the library a week later demanding a list of everyone who had borrowed the book since November 2001.


For our trustees, this sense of responsibility to protect libraries as institutions where people are free to explore any idea ran up against their desire to help their government fight terrorism. But they were resolute and voted unanimously to go to court to quash the FBI subpoena. Fifteen days later, the FBI withdrew its request.

But there is a shadow over our happy ending. Our experience taught us how easily the FBI could have discovered the names of the borrowers, how readily this could happen in any library in the USA. It also drove home for us the dangers that the USA Patriot Act poses to reader privacy.

Since the passage of the Patriot Act in October 2001, the FBI has the power to go to a secret court to request library and bookstore records considered relevant to a national security investigation. It does not have to show that the people whose records are sought are suspected of any crime or explain why they are being investigated. In addition, librarians and booksellers are forbidden to reveal that they have received an order to surrender customer data.


With a Patriot Act order in hand, I would have been forbidden to disclose even the fact that I had received it and would not have been able to tell this story.

The real story is that law enforcement has tried to skirt the exisiting statutes regarding procedures for investigating suspected criminal activity, and that the provisions of the PATRIOT Act essentially forbid any inquiry into government overreaching or abuse of process in a "terror"context.

The library survey found that almost 40 percent of libraries had fielded user inquiries about the effects of the PATRIOT Act on library practices, and about 5 percent of libraries had changed professional practices because of PATRIOT Act issues.

Representative Bernard Sanders, independent of Vermont, who sponsored a bill (which passed 238 to 187) to cut Section 215 as it applied to libraries, said,
"What this demonstrates is that there is widespread concern among the American people about the government having the power to monitor what they are reading."

No-- that can't be true, because this is the first story on the DOJ website:

Majority Supports Renewing USA PATRIOT ActThe USA PATRIOT Act continues to receive broad support from Americans:

From Wainstein's testimony:

One piece of legislation a majority of voters support is renewal of the Patriot Act. A 57 percent majority says the Patriot Act is a good thing for America, up from 54 percent last year (April 2004). Similarly, support for extending the act is up slightly (3 percentage points), as today 56 percent support and 31 percent oppose renewing the legislation.

By 50 percent to 35 percent voters think the Patriot Act has helped prevent terrorist attacks in the United States.

More about the USA PATRIOT Act's broad appeal here:,2933,159790,00.html

How are we to evaluate this apparent discrepancy in public opinion?

First, we start with the site that the DOJ promotes to explain the PATRIOT Act's "broad appeal". We go to Fox News to read this headline:

06/16/05 FOX Poll: Congress 'Out of Touch'; Majority Supports Renewing Patriot Act

Actually, the poll covered much more than the PATRIOT Act, but you can read it for yourself.
Who was surveyed?

Opinion Dynamics Corporation conducted the national telephone poll of 900
registered voters for FOX News on June 14-15.

There is no information concerning the numbers of those who identified with specific parties, although the poll breaks down responses to many of the questions by party.

The poll asked 34 questions, including such gems as number 25, "Who do you think is tougher-- Hillary Rodham Clinton or Condoleeza Rice?" (Answer-- Clinton by a big margin) . The poll's structure looks suspiciously, uh, leading. The five questions immediately preceding those dealing with the PATRIOT Act discussed Guantanamo; the last of these asked,

At the prison at Guantanamo Bay, Muslim prisoners are given copies of the holy Muslim book the Koran. If Muslims were holding Americans as prisoners, do you think the Americans would be given copies of the Bible?

In addition to failing to be neutral, the poll failed to ask specific questions regarding the Section 215 or any other controversial provision.

21. After the 9/11 terrorist attacks, Congress passed the Patriot Act which, in part, gives federal officials wider authority to use wiretaps and other
surveillance techniques. Some people say the Patriot Act is a necessary and effective tool in preventing terrorist attacks, while others say the act goes too far and could violate the civil liberties of average Americans. Which comes closer to your view -- overall, would you say the Patriot Act is a good thing for America or a bad thing for America?
Good ----Bad---- (Mixed)---- (Not sure)
14-15 Jun 05 57% 30 na 13
21-22 Apr 04 54% 28 11 7
29-30 Jul 03 55% 27 9 9

22. Do you think the Patriot Act has helped prevent terrorist attacks in the United States or not?
1. Yes 50%
2. No 35
3. (Not sure) 15

23. Based on what you know, do you support or oppose extending the Patriot Act, which is scheduled to expire at the end of the year?

Support ----Oppose---- (Not sure)
14-15 Jun 05 56% 31 12
21-22 Apr 04* 53% 32 15
*"…scheduled to expire in one year"

By the way, the question about whether Congress is "out of touch" gets position number 10, smack in the middle of a five-question run on Congress-- and completely separated from the questions about the PATRIOT Act. The initial question for the Congress set asks,

8. Do you favor or oppose limiting the number of terms members of the U.S. Senate and House of Representatives, including your own senators and representatives, can serve?

If Fox News can get away with calling itself "fair and balanced", the DOJ gets to tell us that it is "preserving life and liberty."

I just wish that I didn't smell formaldehyde.