Well first of all, I've never seen someone say this before:
"[C]onstitutional issues threaten to be overshadowed by much less important but much more politically sexy topics. Topics such as the purported monitoring of library and bookstore records..."-Viet Dinh, "The Patriot Act Deconstructed," excerpts reprinted by the San Jose Mercury News, August 15, 2004
Library and bookstore records, sexy? If so, it's because librarians and booksellers are doing a good job enlightening the public as to the vital importance of the freedom to read in private -- fundamental to democratic freedom. A Constitutional issue, not a political one.
That's not even my rant. My rant is that Dinh, primary architect of the Patriot Act, then launches into his oft-stated but misleading comparison of Section 215 of the Patriot Act with ordinary criminal subpoenas. He uses the Unabomber case (criminal subpoena for library records) to show that Congress simply extended a similar legal authority for intelligence investigations. He neglects to mention that criminal subpoenas may be challenged in court. Section 215 orders are also approved in court, but it's a different court. At the Foreign Intelligence Surveillance Court, only one side is represented - the FBI. A significant difference.
Update Aug 16: Nor does he consider the significant difference in the definition of the target. Instead of a suspected individual or group, Section 215 allows an investigator to seek an order based on any tangible thing relevant to an ongoing terrorism investigation. This could include records of anyone who checked out a particular book, maybe one on anthrax. Section 215 does have an exception for records of U.S. citizens if "solely" based on the First Amendment. However, libraries do not mark citizenship status of users in their circulation records. If an investigator has a method of screening out citizens' records, this information has not been shared with the public, to my knowledge. Without such screening, how could 215 be used for library records? If it can't be used, then why not exempt library and bookstore records from 215?
Discussion continues at Conservator
His words:
"Let me spend a little more time to address these provisions, which I think have generated more than their fair share of controversy. With respect to subpoenas of library records and bookstore records, in a traditional law enforcement investigation the investigator has always had the ability to issue a grand jury subpoena to seek all evidence relevant to that investigation. In order to get a grand jury subpoena, an agent merely consults with the Assistant US Attorney or with the State and Local Prosecutor and goes to the clerk of the court, not even a judge of the court. The clerk of the court issues the subpoena in order to get evidence relevant to the criminal investigation. This is an ordinary tool of criminal investigation. It has been used to great effect in very celebrated instances in the past. The Unabomber case, the investigation into Andrew Cunanan's murder of Gianni Versace, and the Son of Sam murders in New York are prominent examples whereby evidence of a person's activity with respect to library books and the like became very relevant and very helpful in the solution of a particular case. Section 215 of the USA Patriot Act simply extended the same authority to National Security investigators because Congress reasoned if we have it in order to investigate ordinary crimes, our National Security Investigators should have the same authority in order to investigate spies and terrorists."-Viet Dinh, "The Patriot Act Deconstructed," speech at the World Affairs Council on July 19, 2004, excerpts reprinted by the San Jose Mercury News, August 15, 2004
I took this from the printed newspaper - I don't see it online. Dinh's full talk should soon be available as an audio archive )
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