Seeking Truth From Justice Nowhere does this slaute indicate that about the Act are completely wrong United Statcs citizens cannot be targeted. bccausc, for thc FBI to chcck on a In fact, thc statutc makes it clcar that an citizen's rcadi habits, it must get a “investigation of a United States person" search warrant. And to get a warcan be conducted, so long as it is not based rant, it must convince a judge “there solely on activity protected by thc First is probablc causc that the person Amendment. (Of course, even this limit you are seeking the information for apparently applies only where the investi is a terrorist or a foreign spy.” gation is of a United States person, not - Bangor (ME) Daily News where the investigation is of a foreign April 9, 2003 national but the records or other tangible things that the government seeks are of U.S. Department of Justice United States persons). The statutc dcfincs spokcsman Mark C. Corallo said the “United States persons” to include both cit FBI must present credible evidence izens and permanent residents. (See 50 in order to secure a warrant from the U.S.C. $ 1801(i).) so-called spy court, which meets in sccrct. FALSEHOOD: Under the PATRIOT Act, the FBI cannot obtain a person's “The standard of proof before the records unless it has probable cause. court is the same as it's always bccn,” Corallo said. “It's not been What the government has been saying: lessened." Springfield |MA) Union-News “I really don't understand what the January 12, 2003 concerns arc with the act," (LaRac] Quy (spokeswoman for the San TRUTH: Section 215 of the PATRIOT Act allows the government to obtain materials like library records without probable cause. being violated, but I think there's somc hystcria out thcrc. . . somc Under the PATRIOT Act, the FBI can misunderstanding. obtain records including library circula tion records mcrcly by spccifying to a "We still have to show probable court that the records are “sought for” an causc for any actions wc takc,” ongoing investigation. That standard she said. (sometimes called a "relevancc" standard) San Francisco Chronicle is much lower than the standard required April 13, 2003 by the Fourth Amendment, which ordinar ily prohibits the government from conThe Justice Department spokesman, ducting intrusive scarches unless it has Mark Corallo, says the assertions 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 il remains constrained by the standard of probablc causc 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 Dircctor Rob S. Mucller III) included a section on “Changes in FISA Business Records Authority": Finally, at a hearing before the House Judiciary Committcc on Junc 5, 2003, Attorncy Gcncral Ashcroft conccded that the PATRIOT Act changed the FISA business records standard, saying the governmcnt "uscd to havc (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, tangiblc items" without such a showing (sce below). Thc field may continue to rcqucst business records orders through FBITIQ in the established manner. However, such rcqucsts may now scck production of any relevant information, and need only conlain information establishing such rclcvancc. Ashcroft's tcstimony and thcsc internal memoranda get the law exactly right. They acknowledge, as they must, that thc 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 perlain 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 legal analysis. Similarly, in a December 2002 leller lo Congress responding to questions posed by thc Scnatc Judiciary Committcc, Deputy Attorncy General Larry D. Thompson wrote: HALF TRUTH: The government must “convince a judge” to obtain records under Section 215. Under the old language, thc 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 Thc Justice Department's rcpcatcd asserlion that the authorities must "convince a judge” 10 win permission for a search also overstatcs thc law's protections. Scction 215 statcs: As we have seen, the requirements are min I think there are a lot of misconcepimal. The FBI can obtain sensitive records tions being offered about what the mcrcly by spccifying that the records arc PATRIOT Act does or doesn't do. ... It "sought for” an on-going investigation. For has to be in regards to an international Justice Department spokespersons lo stress tcrrorism investigation after a court the need to "convince a judge” does not do approves us seeking those records. justice to the truc weakness of judicial Testimony of Timothy Burgess, oversight in this law. U.S. Attorney for Alaska before the Alaska Senate State Affairs FALSEHOOD: Section 215 applies Committee, Muy 13, 2003 only to terrorists and spies. What the government has been saying: TRUTH: Section 215 can be applied Justice Department spokesman to anyone. Seeking Truth From Justice ASHCROFT: ... [I]f the judge finds The Justice Department “goes to that the investigation is for thcsc grcat lengths to protect thc privacy of (counter-intelligence or counter-ter- cvery American unless you happen to rorism) purposes, he orders the be a foreign spy or member of a terFISA. (emphasis supplied) ... rorism organization,” said spokesman Mark Corallo. “The average Exactly right. Before the USA PATRIOT American has nothing to fear.” Act, government agenis could get some business records under FISA if they had “reason - Newark Star-Ledger to believe” the person to whom the records April 7, 2003 related was an agent of a foreign power; now, as the Attorney General makes clear, "We're not going after the average they can get any record or other “tangible American," said Mark Corallo, a thing” that is allegedly relevant to an investi Justice Department spokesman. gation regardless of whether the information "We're only going after the bad pertains to an agent of a foreign power. guys. We respect the right to priva cy. If you're not a terrorist or a spy, The implications of Section 215's weak evi you have nothing to worry about." dentiary standard are frightening. The FBI can Washington Post now conduct investigations using this power April 10, 2003 cven when it has no particular individual in mind. For example, the FBI could demand the TRUTH: Democratic societies are records of every person who has checked out a based on checks and balances, not book on bridges based on no more than its investigation of a vaguc, unsubstantiated tip. on blind faith in the good intentions The Department's suggestions that only spies of government officials. or lerrorists need worry about the PATRIOT Act couldn't bc farther from the truth. With all due respect to the Justice Deparment, it is not enough for the governFALSEHOOD: The American people ment to assure us that they “go to grcat can trust the authorities not to lengths to protect" privacy, “don't have any abuse their powers. interest" in spying on innocent people, and arc “not going after” the average American. What the government has been saying: The wisdom of the Founding Fathers, the his"We don't have any interest in look torical record of abuses by the FBI, and coming at the book preferences of mon sense all point lo lhe same conclusion: Americans. We don't care, and it we can't rely on thc FBI or any other federal would be an incredible waste of our law enforcement agency to police itself. time," he (Corallo] said. In June, for example, the Justice Chicago Tribune Department's own internal oversight unit April 4, 2003 relcascd a report highly critical of what it |
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