How the Patriot Act isn't Being Used

An article in today's New York Times contains some fascinating insights into how the Justice Department is, or rather isn't, using the USA Patriot Act:

Some agents at the Federal Bureau of Investigation have been frustrated by what they see as the Justice Department's reluctance to let them demand records and to use other far-ranging investigative measures in terrorism cases, newly disclosed e-mail messages and internal documents show.

Publicly, the debate over the law known as the USA Patriot Act has focused on concerns from civil rights advocates that the F.B.I. has gained too much power to use expanded investigative tools to go on what could amount to fishing expeditions.

But the newly disclosed e-mail messages offer a competing view, showing that, privately, some F.B.I. agents have felt hamstrung by their inability to get approval for using new powers under the Patriot Act, which was passed weeks after the terrorist attacks of Sept. 11, 2001.


Yes, this includes Section 215, the so-called "library section":

One internal F.B.I. message, sent in October 2003, criticized the Office of Intelligence Policy and Review at the Justice Department, which reviews and approves terrorist warrants, as regularly blocking requests from the F.B.I. to use a section of the antiterrorism law that gave the bureau broader authority to demand records from institutions like banks, Internet providers and libraries.

"While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us," read the e-mail message, which was sent by an unidentified F.B.I. official. "This should be an OIPR priority!!!"


The following passage shows how difficult it is for FBI agents to actually get a Section 215 warrant approved:

But officials at the Justice Department and the F.B.I. said they were unaware of any such change in procedure and that all bureau requests for business record were still reviewed and approved by the Justice Department.

A separate e-mail message, sent in May 2004 with the subject header "Miracles," mockingly celebrated the fact that the Justice Department had approved an F.B.I. request for records under the so-called library provision.

(emphasis added-DD)


Finally, the article points out that the FBI has used Section 215 to obtain business records 35 times, but never once in a library or bookstore setting. In other words, the idea that the FBI is secretly rummaging through library records on a regular basis has no basis in fact. The Patriot Act renewal bill that Congress is currently mulling over will only make it even more difficult for the FBI to do so.


Some may scoff at this. However, in an era where CIA covert operations regularly appear on the front pages of the Times and the Washington Post, it is highly unlikely that the Justice Dapartment could lie about this matter without having the truth leak out.