Section 215 Memorandum

Attached, for your information, is a memorandum from Attorney General Ashcroft to FBI Director Mueller regarding his decision to declassify the number of times Section 215 (business records provision - often referred to as the "library provision") has been used. That number is ZERO (0). This provision has been the subject of a great deal of interest. A relevant article is also included below.

Jamie Brown
Director and Advisor to the Attorney General
Office of Intergovernmental and Public Liaison
United States Department of Justice
950 Pennsylvania Avenue, N.W.; Room 1629
Washington, DC 20530

MEMORANDUM FOR DIRECTOR ROBERT S. MUELLER

FROM:        THE ATTORNEY GENERAL  

SUBJECT:     PATRIOT ACT SECTION 215  

This memorandum confirms I have declassified the number of times to date the Department of Justice, including the Federal Bureau of Investigation (FBI), has utilized Section 215 of the USA PATRIOT Act relating to the production of business records. The number of times Section 215 has been used to date is zero (0).  

I know you share my concern that the public not be misled regarding the manner in which the U.S. Department of Justice, and the FBI in particular, have been utilizing the authorities provided in the USA PATRIOT Act. Public confidence in law enforcement is of paramount importance. That is why I have taken this action despite the fact that it is generally not in the interest of the United States to disclose information of this nature.  

While Congress has regularly been informed regarding the number of times Section 215 has been used, and while individual Members of Congress have been able to review that information, to date we have not been able to counter the troubling amount of public distortion and misinformation in connection with Section 215. Consequently, I have determined that it is in the public interest and the best interest of law enforcement to declassify this information.

Patriot Monitoring Claims Dismissed
Government Has Not Tracked Bookstore or Library Activity, Ashcroft Says
By Dan Eggen
Washington Post Staff Writer
Friday, September 19, 2003; Page A02

The Justice Department escalated its attack on opponents of the USA Patriot Act yesterday, ridiculing criticism of the anti-terrorism law and accusing some lawmakers of ignoring classified reports that showed the government has never used its power to monitor individuals' records at bookstores and libraries.

In an unusually sharp and at times sarcastic speech to police and prosecutors in Memphis, Attorney General John D. Ashcroft labeled critics of the law "hysterics" and said "charges of abuse of power are ghosts unsupported by fact or example."

"The fact is, with just 11,000 FBI agents and over a billion visitors to America's libraries each year, the Department of Justice has neither the staffing, the time nor the inclination to monitor the reading habits of Americans," he said. "No offense to the American Library Association, but we just don't care. . . .

"The charges of the hysterics," Ashcroft added, "are revealed for what they are: castles in the air built on misrepresentation; supported by unfounded fear; held aloft by hysteria."

Ashcroft's comments came after the release yesterday of a memo he wrote disclosing that the Justice Department has never used a controversial section of the Patriot Act that allows authorities in terrorism investigations to obtain records from libraries, bookstores and other businesses without notifying the subject of the probe.

That portion of the law, Section 215, has become a central focus of criticism from civil liberties groups, booksellers and librarians, and has perhaps been some lawmakers' most frequently cited example of potential government abuse. By disclosing that the provision has never been used, Ashcroft and other Justice officials hope to neutralize much of the criticism and beat back attempts to curb the law, officials said.

The Justice Department did not disclose how many times investigators have used a similar tool, national security letters, to obtain business records. Sources have said that scores of such letters have been used since the Sept. 11, 2001, attacks.

The department also took special aim yesterday at some members of Congress who have implied that Ashcroft was spying on Americans' book-reading habits, despite the lawmakers' access to classified reports that showed that the Patriot Act provision had never been used. The Justice Department updates the intelligence committees on its use of the Patriot Act twice a year, and other members of Congress can request those reports, officials said.

"There are members of Congress who ought to be held accountable for their statements, because they had access to this information but continually charged that abuses were taking place," Justice spokesman Mark Corallo said. "They knew better. . . . We hope that the release of this information will bring some rationality back to the debate."

Corallo declined to identify the lawmakers to whom he was referring. But some of the strongest congressional criticism in recent weeks has come in the Democratic presidential race. In a debate in Baltimore last week, Sen. John Edwards (D-N.C.) warned of turning over "our constitutional rights to John Ashcroft" and decried "the notion that they are going to libraries to find out what books people are checking out, going to bookstores to find out what books are being purchased."

As a member of the Senate intelligence committee, Edwards had access to the reports on the use of the Patriot Act.

His spokeswoman, Jennifer Palmieri, said yesterday that Edwards, who voted for the Patriot Act when it was approved in October 2001, was concerned about potential abuse of some parts of the statute. She also said that Justice officials have offered confusing information about the monitoring of library use. One Justice official testified earlier this year that the FBI had sought records from about 50 libraries, but that most, if not all, of the requests were part of criminal investigations, not counterterrorism probes.

"The senator believes that the law gives the attorney general too much discretion in this area," Palmieri said.

The American Civil Liberties Union, which has filed a lawsuit challenging the government's powers to monitor such records, said yesterday its concerns were not allayed. "What we've always been focused on is the scope of the law itself, and that hasn't changed at all," ACLU attorney Ann Beeson said. "They could use it tomorrow and we would never know, and that makes it extremely dangerous."

Ashcroft's decision to publicly disclose the previously classified information marked a turnabout for Justice, which has consistently resisted requests for the information on the basis of national security concerns. Ashcroft is in the midst of a cross-country tour in defense of the Patriot Act.

More than 150 cities and three states have passed resolutions condemning the legislation as an attack on individual liberties. The House voted in July to cut off funding for "sneak-and-peek" searches, in which investigators do not immediately notify the subject that a search has been conducted.

Ashcroft and the administration have reacted aggressively, vowing to thwart any attempts to limit the Patriot Act's reach. And in an announcement last week, President Bush proposed expanding the powers granted by the law to investigate terrorism cases.

Ashcroft, whose speeches during most of his tour have been forceful but measured, has unleashed aggressive new rhetoric in several appearances this week.

At his speech in Memphis, for example, the attorney general said he sought to clarify who should be worried about government monitoring. "If your idea of a vacation is two weeks in a terrorist training camp" or "if you enjoy swapping recipes for chemical weapons from your 'Joy of Jihad' cookbook," Ashcroft said, "you might be a target of the Patriot Act."