Patriot gamesmanship

Barton Gellman’s in-depth report on the administration’s use of national-security letters, in Sunday’s Washington Post, raises a number of fascinating and disturbing questions. Here’s one: From the time that the Patriot Act was approved in the days following 9/11, civil libertarians have railed against Section 215, which would, among other things, allow federal agents to snoop on library and bookstore records with virtually no judicial oversight. Now it appears that those critics may have been looking in the wrong place.

Gellman begins his article by recounting an ongoing struggle in Windsor, Conn., over a national-security letter that the FBI sent to a library official ordering him to turn over “‘all subscriber information, billing information and access logs of any person’ who used a specific computer at a library branch some distance away.”

Former attorney general John Ashcroft liked to brag that Section 215 had never actually been invoked. For instance, here is a CBS News report from September 2003 in which Ashcroft was quoted as saying, “The number of times section 215 has been used to date is zero.” That assertion, based as it was on secret information, seemed dubious. (Among other things, the Patriot Act forbids anyone who’s been subpoenaed under Section 215 from making that information public.) In any case, when the Windor situation came to light earlier this year, it appeared that — at the very least — the count had risen from zero to one.

But wait. It turns out that the Windor library order was invoked not under Section 215 but under Section 505 — the provision that allows for the increased use of national-security letters. For instance, see this report from the American Library Association, which has been following the case. And, as Gellman observes:

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters — one of which can be used to sweep up the records of many people — are extending the bureau’s reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

In a 2003 assessment of the Patriot Act, Slate’s Dahlia Lithwick and Julia Turner wrote:

This section authorizes the attorney general or a delegate to compel holders of your personal records to turn them over to the government, simply by writing a “national security” letter. Section 505 has garnered a lot less national attention than Section 215 — the library records section of the act — which may be why it is invoked a lot more often.

Maybe Ashcroft was right — maybe civil libertarians did get too worked up about Section 215. But if that’s the case, it’s mainly because Section 505 was the more dangerous provision all along.