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Big Brother is Not in the Reading Room By: Henry Mark Holzer and Erika Holzer
FrontPageMagazine.com | Wednesday, August 25, 2004


No matter who wins the presidential election or controls the senate, the Left, emboldened by the Supreme Court’s “enemy combatant” and “Guantanamo detainee” decision, will continue to attack our most powerful domestic anti-terrorism weapon:  The Patriot Act.

 

Indeed, in the keynote address to the Democratic Convention, Harvard law-trained Barack Obama (possibly the next junior senator from Illinois) made the obligatory snide crack about one of the Act’s core provisions.  In perhaps the worst non sequitur of a political convention that was filled with them, Obama pontificated that:  “The pundits, the pundits like to slice and dice our country into red states and blue states: red states for Republicans, blue states for Democrats.  But I’ve got news for them, too.  We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states.  (Emphasis added).  The latter was a coded reference to Section 215 of the Patriot Act (whose complete jaw-breaking title is “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (USA PATRIOT).

 

The Act—passed by an overwhelming majority vote in both houses of Congress in the aftermath of September 11—is one of the most complicated federal statutes on the books.  Not only is it hundreds of pages long, not only does it contain a host of new provisions, and not only does it embody sub-sub-sub-sections within sub-sub-sections within sub-sections within sections within Titles, the Act, as well, amends dozens (if not scores) of other federal statutes. 

 

Practically, this means that the Patriot Act cannot possibly be understood in its entirety without lengthy and scrupulous examination — something most Americans, understandably, are neither motivated nor qualified to do. 

 

This difficulty creates a knowledge vacuum, allowing Leftists to spew inflammatory and highly misleading anti-Act rhetoric in an effort to galvanize opposition to the Act.

 

Certain sections of the Act, however, are readily understood, including the one Obama took aim at—a single section that has become a principal target of the Left’s hysterically generalized misrepresentations about the dangers allegedly posed by the entire law.  That section is Title II--Enhanced Surveillance Procedures, Section 215--Access To Records And Other Items Under the Foreign Intelligence Surveillance Act (FISA).

 

But the Patriot Act did not create the pre-existing FISA.  FISA was enacted years ago, and its constitutionality has never been successfully challenged.

 

Section 215 of the Patriot Act eliminated three sections of FISA and replaced them with a new Section 501, entitled “Access to certain business records for foreign intelligence and international terrorism investigations.”  There are five sub-sections to FISA’s new Section 501.  Not one, nor any combination of them, gives the government Orwellian “Big Brother” powers.  Nor is Section 501 likely to infringe on anyone’s civil liberties.

 

Subsection (e) need not detain us; it provides that anyone complying with a Section 501 production order is immune from civil liability to anyone complaining about the production.  That leaves four sub-sections.

 

Sub-section (a) provides that only a ranking member of the FBI “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 [individuals and/or entities] is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”

 

Consider the six essential elements of this sub-section.  First, low-level FBI employees have no power to seek production orders.  Second, even a ranking FBI member can only apply for an order; he cannot automatically obtain one, or otherwise act unilaterally.  Third, the application must be made to a third party (see below).  Fourth, the third party has the power not to grant the order.  Fifth, the investigation can not be a fishing expedition into any sort of crime but only a crime related to the war on terrorism.  And, sixth, even if the investigation for which the production order is sought is so related, the investigation cannot be based on first amendment-protected activity: speech, press, assembly, petition or the free exercise of religion. 

 

Sub-section (b) provides that applications for production must be made to a federal judge, and that such applications “shall specify that the records concerned are sought for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.”

 

Now consider the four essential elements of this sub-section.  First, only a federal judge has the power to enter a production order.  Second, the application must be specific in its representations.  Third, the representations must include that there is an authorized investigation.  Fourth, that investigation cannot be into just any crime—even serious ones like treason, espionage or homicide—but only those dealing with international terrorism or clandestine intelligence activities.

 

Sub-section (c) provides that the judge can make an ex parte order (i.e., without notice to the intended recipient) only if the judicial officer “finds that the application meets the requirements of this section.”

 

To reiterate in brief, the production order can be granted by a federal judge only if four essential conditions are satisfied: (1) the appropriate person has made the application; (2) there is an authorized investigation; (3) the investigation is into international terrorism or clandestine intelligence activities; (4) the investigation cannot be based on first amendment-protected activities: speech, press, assembly, petition, the free exercise of religion. 

 

Sub-section (d) provides that no one can reveal that the FBI has sought or obtained any “tangible things” pursuant to a production order.

 

Analyzed in this light—and in its entirety—FISA’s new Section 501 provides no basis for the Left-conjured specter of some rogue FBI agent with no judicial oversight unilaterally ransacking a library’s files and carting off its records.

 

Yet, immediately upon enactment of the Patriot Act, the ACLU attacked Section 501, asserting that it “violates the Fourth Amendent by allowing the government to effect Fourth Amendment searches without a warrant and without showing probable cause.”  Or, as Mr. Obama put the point more colloquially in his keynote speech, “[W]e don’t like federal agents poking around in our libraries.”

 

However, no court case has yet held Section 501 (Section 215 of the Patriot Act) unconstitutional. Indeed, as the ACLU well knows, the Fourth Amendment protects against only “unreasonable” searches and seizures.  In today’s world, it should be evident to the ACLU, the Supreme Court of the United States (despite the latter’s recent “enemy combatant” and “Guantanamo detainee” decisions) and even to Harvard-trained lawyers, that there is nothing “unreasonable” about the government requiring the production of “tangible things” if a statutorily authorized agent’s written application is pursuant to an authorized investigation into international terrorism or clandestine intelligence activities that does not involve first amendment-protected rights.  Equally, the Fourth Amendment’s requirement of “probable cause” is entirely satisfied by the existence of a very specific investigation.

 

As for libraries in particular, the United States Department of Justice has explained the rationale for production requests that might be directed at them, expressly addressing the ACLU’s counterfeit objection to Section 501: 

Historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. If terrorists or spies use libraries, we should not allow them to become safe havens for their terrorist or clandestine activities. The Patriot Act ensures that business records — whether from a library or any other business — can be obtained in national security investigations with the permission of a federal judge.

Examining business records often provides the key that investigators are looking for to solve a wide range of crimes. Investigators might seek select records from hardware stores or chemical plants, for example, to find out who bought materials to make a bomb, or bank records to see who is sending money to terrorists. Law enforcement authorities have always been able to obtain business records in criminal cases through grand jury subpoenas, and continue to do so in national security cases where appropriate. In a recent domestic terrorism case, for example, a grand jury served a subpoena on a bookseller to obtain records showing that a suspect had purchased a book giving instructions on how to build a particularly unusual detonator that had been used in several bombings. This was important evidence identifying the suspect as the bomber.

In national security cases where use of the grand jury process was not appropriate, investigators previously had limited tools at their disposal to obtain certain business records. Under the Patriot Act, the government can now ask a federal court (the Foreign Intelligence Surveillance Court), if needed to aid an investigation, to order production of the same type of records available through grand jury subpoenas. This federal court, however, can issue these orders only after the government demonstrates the records concerned are sought for an authorized investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely on the basis of activities protected by the First Amendment.

The ACLU and its cohorts have conveniently ignored yet another significant statutory requirement (Section 502 of the Patriot Act), this one regarding congressional review of the government’s use of business records obtained under the Act.  As the Justice Department points out, every six months the Attorney General must “fully inform” Congress “concerning all requests for the production of tangible things” and make a “report setting forth with respect to the preceding 6-month period (1) the total number of applications made for [production] orders . . . and . . . (2) the total number of such orders either granted, modified, or denied.”  For example, on October 17, 2002, the House Judiciary Committee issued a press release indicating it is satisfied with the Department’s use of section 215: “The Committee’s review of classified information related to FISA orders for tangible records, such as library records, has not given rise to any concern that the authority is being misused or abused.” 

For the record, there have been no official congressional complaints about Section 501’s use. 

Nor should there be.  Section 501, a major weapon in this Nation’s struggle against terrorism, not only carefully protects Americans against seizure of their “tangible things”—from libraries and everywhere else—but is indispensable to our very survival.

In one respect, however, the protection afforded America by Section 501 is tenuous.  Apart from a single narrow exception, Section 224 of the Patriot Act—entitled “Sunset”— provides that the Act “shall cease to have effect on December 31, 2005.”  This means that even if the Left fails to kill Section 501 of FISA between now the end of next year, it will take an affirmative vote of the Congress (perhaps even the newly minted requirement of a Super Majority in the Senate), and approval by the President, to retain it.  In the hands of a Democratic Senate and/or a President Kerry, we cannot expect Section 501 in particular, or the Patriot Act in general, to fare well.

Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, specializes in federal appeals.  Erika Holzer is a lawyer and novelist.  They are co-authors, most recently, of Fake Warriors: Identifying, Exposing and Punishing Those Who Falsify Their Military Service.



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