By Dan Eggen
Washington Post Staff Writer
Thursday, September 18, 2003
The Justice Department, which has repeatedly been accused of encroaching on civil liberties in its war on terrorism, has never actually used a controversial provision of the USA Patriot Act that allows it to seek records from libraries, bookstores or other businesses, according to a confidential memo from Attorney General John D. Ashcroft.
Ashcroft said in the memo to FBI Director Robert S. Mueller III that he had decided to declassify that previously secret information because of his "concern that the public not be misled about 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.
"The number of times [the provision] has been used to date is zero," Ashcroft said in the memo, which was obtained by The Washington Post.
The disclosure is the latest volley in an escalating war of words between Ashcroft and his critics, which include civil liberties groups and some Democratic presidential candidates, who have condemned the Patriot Act as an attack on individual rights. Ashcroft is in the midst of a cross-country speaking tour aimed at shoring up support for the law, which has been the focus of more than 160 protest resolutions across the country.
Section 215 of the Patriot Act, a law approved six weeks after the Sept. 11, 2001, attacks, expands the government's power to obtain records from a wide range of businesses as part of a counterterrorism investigation, without notifying the subjects of the probe. The potential use of the provision in libraries has generated some of the strongest objections to the law.
In reversing his position, Ashcroft told Mueller that the value of disclosing the information outweighs the potential harm to national security. Justice officials have long resisted releasing the information, saying the threat of the provision's use poses a deterrent to potential terrorists.
"To date we have not been able to counter the troubling amount of public distortion and misinformation in connection with Section 215," Ashcroft wrote. "Consequently, I have determined that it is in the public interest and the best interest of law enforcement to declassify this information."
Ashcroft's disclosure does not address how investigators have used other parts of the sprawling Patriot legislation. Justice officials have indicated in previous responses to Congress that top-secret National Security Letters used by the FBI are a "more appropriate tool" for obtaining business records in many cases. Scores of such letters have been used since the Sept. 11 attacks, sources have said.
Ashcroft called the head of the American Library Association yesterday to inform her of his decision, according to officials from the Justice Department and the group.
Emily Sheketoff, executive director of the group's Washington office, said Ashcroft's decision "is a big win for librarians and a bigger win for the American public. He's being forced to give out information that he doesn't want to give out."
Staff writer Susan Schmidt contributed to this report.