Lamenting a lack of informed debate on the USA Patriot Act (“the Patriot Act”), Deputy U.S. Attorney General James Comey defended it at Duke Law School on March 22.
“The discussion of this particular piece of legislation has been bumper-stickered by opponents and, to be fair, by proponents, who questioned the patriotism of people who question it.” But the details show that the Patriot Act involves no tradeoff between liberty and security, nor does there need to be any such tradeoff to keep the country safe, he said.
Comey addressed issues of common concern in the Act–and under debate in Congress at press time–beginning with section 215, which gives government investigators working on foreign counter-intelligence or counter-terrorism cases the ability to apply to a federal judge for a subpoena to obtain “books, records, and other tangible items.” This provision has been a lightening rod for criticism from advocates concerned about the privacy of library records.
To a prosecutor, “books and records” mean credit card, bank, and accounting records, Comey said. “The word ‘library’ does not appear in the USA Patriot Act, and I would bet my life that the people who drafted [it] never thought about libraries when they enacted section 215. Theoretically you could get books subpoenaed from a library by virtue of this provision, [but] the Act specifically says that the request cannot be based solely upon First Amendment activities of the person whose records are at issue.”Besides, he argued, in the course of criminal investigations federal prosecutors have long been able to issue subpoenas “for books, records, and tangible items including, theoretically, books at a bookstore or at a library.” By way of example, Comey pointed out that the government subpoenaed the library records of Ted Kaczynski to corroborate his brother’s suspicions that he was the “Unabomber;” the published writings that piqued David Kaczynski’s interest cited obscure and ancient texts that Ted had indeed checked out.