Seeking Truth From Justice PATRIOT Propaganda: The Justice Department's Campaign to Mislead n recent months, citizen concern about the Unfortunately, the Department of Justice Primarily at issue is Section 215 of the ernment power to rifle through individuals' finances, medical historics, Internet usage, bookstore purchases, library usage, school records, travel patterns or through records of any other activity. The debate over the PATRIOT Act comes at a time when the Justice Department is not only pushing Congress to remove "sunset" or expiration provisions that apply to some portions of the Act, but is also planning to ask Congress for passage of new legislation dubbed "PATRIOT II" – that would give federal law enforcement authorities even more expansive powers. In testimony before the House Judiciary Committee on June 5, Attorney General Ashcroft testified that the new powers would include expansions of the offense of "material support" for terrorism, which under overbroad definitions of terrorism in the original PATRIOT Act could be applied to political protesters, and an expansion of presumptive, pre-trial detention even after the Department's own Inspector General found widespread mistreatment of detainees wrongly classified as terror suspects. It is troubling that in its cagerness to prepare a foundation for new surveillance and other powers, the Justice Department has resorted to spreading falsehoods and half-truths about the powers it already has. The following report lays out a series of Seeking Truth From Justice FALSEHOOD: The PATRIOT Act does not apply to Americans. What the government has been saying: "This is limited only to foreign intelligence," said Mark Corallo, a spokesman with the Department of Justice. "U.S. citizens cannot be investigated under this act." - Florida Today Sept. 23, 2002 Mark Corallo, Justice Department spokesman, said Wednesday that critics of the USA Patriot Act were "completely wrong" and denied that the act targeted Americans.... "I don't know why they are mislcading the public, but they are," he said of the act's critics Thursday. "The fact is the FBI can't get your records." - Bangor [ME] Daily News April 4, 2003 "And I have prepared... this handy chart that takes the actual text of section 215 and explains the requirement for court authorization, the requirement that it not - it is not directed at US Persons, the requirement that it cannot be directed solely at First Amendment activities. ..." "The public has I think been misled, and this is the myth versus the reality of section 215." Viet Dinh. Assistant Attorney General, primary author of the PATRIOT Act, speaking at the National Press Club, Washington D.C., April 24, 20031 "I think, for instance, there is concern that under the PATRIOT Act, federal agents are now able to review library records and books checked out by U.S. citizens. If you read the Act, that's absolutely not truc.... It can't be for U.S. citizens." - Testimony of Timothy Burgess, U.S. Attorney for Alaska, before the Alaska Senate State Affairs Committee on May 13, 2003 TRUTH: Section 215 of the PATRIOT Act can be used against American citizens. Claims that Section 215 of the PATRIOT Act cannot be used against American citizens arc simply wrong. According to the text of the Foreign Intelligence Surveillance Act as it was amended by Section 215: (a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) 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 is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution. 1 Video of Dinh's remarks is available online at www.c-span.org. "Viet Dinh & Marc Rotenberg Debate Patriot Act,” April 24, 2003, Seeking Truth From Justice Nowhere does this statute indicate that United States citizens cannot be targeted. In fact, the statute makes it clear that an "investigation of a United States person" can be conducted, so long as it is not based solely on activity protected by the First Amendment. (Of course, even this limit apparently applies only where the investigation is of a United States person, not where the investigation is of a foreign national but the records or other tangible things that the government seeks are of United States persons). The statute defines "United States persons" to include both citizens and permanent residents. (See 50 U.S.C. § 1801(i).) FALSEHOOD: Under the PATRIOT Act, the FBI cannot obtain a person's records unless it has probable cause. What the government has been saying: "I really don't understand what the concerns arc with the act," [LaRac] Quy [spokeswoman for the San Francisco FBI office] said. "What it did was primarily streamline existing laws on the books. I know some people feel their privacy rights are being violated, but I think there's some hysteria out there... some misunderstanding. "We still have to show probablc San Francisco Chronicle The Justice Department spokesman, Mark Corallo, says the assertions about the Act are completely wrong because, for the FBI to check on a citizen's reading habits, it must get a search warrant. And to get a warrant, it must convince a judge "there is probable cause that the person you are seeking the information for is a terrorist or a foreign spy." - Bangor [ME] Daily News April 9, 2003 U.S. Department of Justice spokesman Mark C. Corallo said the FBI must present credible evidence in order to secure a warrant from the so-called spy court, which meets in sccrct. "The standard of proof before the court is the same as it's always been," Corallo said. "It's not been lessened." - Springfield [MA] Union-News January 12, 2003 TRUTH: Section 215 of the PATRIOT Act allows the government to obtain materials like library records without probable cause. Under the PATRIOT Act, the FBI can obtain records including library circulation records merely by specifying to a court that the records are "sought for" an ongoing investigation. That standard (sometimes called a "relevance" standard) is much lower than the standard required by the Fourth Amendment, which ordinarily prohibits the government from conducting intrusive searches unless it has probable cause to believe that the target of Seeking Truth From Justice the investigation is engaged in criminal activity. Although the Justice Department is assuring the public that it remains constrained by the standard of probable cause and that the standard "is the same as it's always been," the government has been telling a different story to its own attorneys. For example, an October 26, 2001 memo to "All Divisions" from the FBI's Office of General Counsel (and approved by FBI Director Robert S. Mueller III) included a section on "Changes in FISA Business Records Authority": The field may continue to request business records orders through FBIIIQ in the established manner. However, such requests may now scck production of any relevant information, and need only contain information establishing such relevance. Similarly, in a December 2002 letter to Congress responding to questions posed by the Senate Judiciary Committcc, Deputy Attorney General Larry D. Thompson wrote: Under the old language, the FISA Court would issue an order compelling the production of certain defined categories of business records upon a showing of relevance and "specific and articuable facts" giving reason to believe that the person to whom the records related was an agent of a foreign power. The USA PATRIOT Act changed the standard to simple relevance. Finally, at a hearing before the House Judiciary Committee on June 5, 2003, Attorney General Ashcroft conceded that the PATRIOT Act changed the FISA business records standard, saying the government "used to have [to allcgc] a reason to believe that the target is an agent of a foreign power" – a standard he agreed was "lower than probable cause." Under the PATRIOT Act, he acknowledged, the standard has changed to allow the government may obtain all "relevant, tangible items" without such a showing [scc below]. Ashcroft's testimony and these internal memoranda get the law exactly right. They acknowledge, as they must, that the FBI can now obtain sensitive business records merely by telling a court that the records are sought for an ongoing investigation; that is, the FBI can obtain the records even if they have no reason at all to believe that the person to whom the records pertain is a criminal or foreign spy. The Department's contention that Section 215 can't be used without probable cause misleads the public and ignores the government's own Icgal analysis. HALF TRUTH: The government must "convince a judge" to obtain records under Section 215. The Justice Department's repeated asscrtion that the authorities must "convince a judge❞ to win permission for a search also overstates the law's protections. Section 215 states: |