Attorney General Defends Section 215 Before Senate Judiciary Committee

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On Tuesday, April 5, in a statement before the Senate Committee on the Judiciary (SCJ), Attorney General Alberto Gonzales urged the oversight committee to renew Section 215 of the USA Patriot Act; however, under questioning, he acknowledged that some modifications to the provision would be acceptable to the Department of Justice. Gonzales testified alongside FBI Director Robert S. Mueller during the SCJ's "Oversight of the USA Patriot Act" full committee hearing.

"I recognize that Section 215 has been subject to a great deal of criticism because of its speculative application to libraries, and based on what some have said about the provision, I can understand why many Americans would be concerned," Gonzales said. "Now some have suggested, since the Department has no interest in the reading habits of law-abiding Americans, that Section 215 should be amended to forbid us from using the provision to request the production of records from libraries and booksellers. This, however, would be a serious mistake."

However, in response to a question from a committee member about the potential civil liberty violations that could arise under Section 215, Gonzales acknowledged, "We support a change in the law to allow for specific challenges to Section 215 orders and would support changes in law that would allow someone to talk to an attorney in preparation of that order."

The three-hour-plus hearing was not only an inquiry and a review of the Act, but also a subtle verbal jousting match between those committee members in favor of renewing the Patriot Act as it currently stands and those who want to see some provisions expire or amended for fear they leave open the possibility that the government might infringe on innocent citizens' privacy.

Commenting on the hearings, ABA COO Oren Teicher noted, "Yesterday's hearings were a step in the right direction, because, contrary to previous Administration statements that no changes at all were needed in the USA Patriot Act, the Attorney General said yesterday that businesses whose records become targets of Section 215 requests would have the right to consult their lawyers and challenge those requests in court. One of the most egregious parts of Section 215 was the denial of any due process in these investigations." He also noted that while arguments were made that bookstore and library records were open to being subpoenaed before the passage of the Patriot Act, "the standard for the Patriot Act is not probable cause, it is merely that the material requested be 'relevant' to an investigation -- a much lower standard."

Teicher stressed, "We never maintained that bookstores have an absolute right of privacy, but that demands for information about the reading habits of our customers needed to be adjudicated in court. If the Attorney General agrees with us on that point, we've made significant progress toward restoring the safeguards for reader privacy." ABA is a co-sponsor, with the American Library Association, the Association of American Publishers, and PEN American Center, of the Campaign for Reader Privacy, a grassroots effort calling on Congress to amend Section 215.

In addition to SCJ chair Arlen Specter (R-PA), among the committee members taking part in the oversight hearing were Senators Russell D. Feingold (D-WI), Patrick Leahy (D-VT), Orrin Hatch (R-UT), Jeff Sessions (R-AL), and Richard Durbin (D-IL), who, with Larry Craig (R-ID), on April 5, reintroduced in the Senate the Security and Freedom Enhancement Act (SAFE), legislation that would amend parts of the USA Patriot Act, including Section 215.

In questioning Gonzales about the Patriot Act, Durbin said, "Let's be honest, we passed the Patriot Act at a moment when the nation was gripped with high emotion and fear. History tells us that we don't do our best work under those circumstances.... Sadly ... we often err on the side of expanding the power of government at the expense of individual rights and liberties."

Durbin reported that Section 215 "has caused great pain for people in many communities" and pointed to the American Library Association (ALA). "The ALA is not historically a politically active group but has become politically active because they believe the Patriot Act has gone too far."

Section 215 allows authorities to undertake broad searches of a library's patron database, Durbin explained, meaning that an innocent civilian might inadvertently have a veil of suspicion cast over him or her simply because he or she borrowed a book that set off warning flags to the authorities. "It would sweep in innocent citizens into this web," he continued. "Section 215 allows all of that information to be gathered in secret through a FISA court order and many innocent people to have their privacy compromised in the process."

In response to Gonzales, who compared a subpoena issued under Section 215 to a Grand Jury subpoena, Durbin pointed out that, while a Grand Jury subpoena could be challenged, a subpoena issued under Section 215 cannot be challenged and is secret. "Your analogy breaks down completely," he told the Attorney General.

The Attorney General noted that Durbin made some "good points," though he added, "Section 215, in my judgment, has been subject to a great deal of misunderstanding. The Department and government have no interest in the library reading habits of ordinary Americans. We do believe that libraries should not become safe havens for people who want to do harm to other Americans.... There have been examples of terrorists who are using access to computers at libraries."

During his questioning, Senator Leahy critiqued the poor reporting habits of the Justice Department in regards to its usage of the Patriot Act and said he hoped Gonzales will "take a different tact than your predecessor [John Ashcroft], and you will cooperate with this committee as we consider how to improve upon and adjust the balances ... in the Patriot Act.... I believe many of us are considering renewing some of the provisions that are subject to sunset, but we need a sense of trust and accountability from the Department first." He asked the Department for more regular reporting.

Not all committee members were concerned that the USA Patriot Act violated Americans' civil liberties. Senator Sessions blamed the "talking heads in the media" for people's misconception that the Act is an "erosion of our constitutional liberties" and referred to it as a "restrained piece of legislation." Sessions added that the concerns of ALA are "almost amusing, some of the things that have come out of ALA ... it sounds like Woodstock myths."

Senator Hatch stressed that, while it's important to debate the Patriot Act's effects on civil liberties, "it is a debate that has to be guided by the facts and the fact is that critics of the Patriot Act are hard pressed to document abuses of the Patriot Act."

Specter announced that a second SCJ Patriot Act oversight hearing, which would give critics of the Patriot Act a chance to testify, was scheduled for May 10.

To read about the House Judiciary Committee hearings, which began on Wednesday, April 6, go to --David Grogan