Massachusetts Governor Mitt Romney hosts Attorney General John Ashcroft at an event for law enforcement focused on defending the USA Patriot Act, Faneuil Hall, Boston, September 9, 2003. Photo Credit: Boston Globe via Getty Images
By David Kurlander
President Trump has created legal confusion with a series of Twitter demands to declassify all documents related to the FBI’s investigation of Russian interference in the 2016 presidential election. The White House staff has scrambled to retract Trump’s seeming order, while Director of National Intelligence John Ratcliffe selectively declassified an unverified 2016 Russian intelligence report suggesting that then-candidate Hillary Clinton was attempting to tie Trump to Putin. Reggie Walton, U.S. District Court Judge for the District of Columbia, ruled last week that Trump’s tweets did not constitute official dictums. Back in September 2003, Attorney General John Ashcroft engaged in a similarly politicized declassification push. Ashcroft, one of the architects of the post-9/11 USA Patriot Act, agreed to reveal data concerning the controversial Section 215, a provision that allowed the FBI to secretly request records from public libraries.
John Ashcroft was no stranger to drama. In 1998, while serving as the junior U.S. Senator from Missouri under President Clinton, Ashcroft had waged a racially-charged opposition campaign that scuttled the nomination of Missouri’s first Black State Supreme Court Judge, Ronnie White, to the U.S. District Court. After Bush nominated Ashcroft to be Attorney General in January 2001, the designate narrowly survived a bruising confirmation battle during which Senate Democrats grilled him extensively on White, abortion, and gun rights. Much of Ashcroft’s first nine months on the job had been dogged by often-petty partisan rancor, including an ethics kerfuffle involving his usage of a government jet for a fishing trip.
Then, the devastating events of 9/11. On the morning of September 12th, 2001, Ashcroft reported to the Oval Office. “Don’t ever let this happen again,” President Bush told his Attorney General as they assessed the devastating damages of the previous day’s terrorist attacks. “Those words became my guidepost for the next four years,” Ashcroft reflected in his memoir, Never Again. “I devoted myself to an intense, sometimes secret war with a mission many people thought was impossible: stopping terrorists from attacking again on American soil.”
Six weeks after the attacks, Ashcroft shepherded the near-unanimous Senate passage of the USA Patriot (Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act, which amended 15 existent surveillance statutes to make investigations of suspected terrorists more secretive and efficient. The one vote against the Act came from Wisconsin Democrat Russ Feingold, who took particular issue with Section 215. The provision changed the Foreign Intelligence Surveillance Act (FISA) by requiring businesses to provide to intelligence services a wide swath of “tangible things”—including bookstore and library records—belonging to individuals with possible terrorist connections. “The government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records,” Feingold said on the Senate floor shortly before the Act’s 98-1 passage. “This is a truly breathtaking expansion of police power.”
Ashcroft—true to his promise to Bush on September 12th—had become an increasingly flamboyant defender of the administration’s anti-terrorism program. In Senate testimony in December 2001, he theatrically presented a seized Al-Qaeda training manual and assailed the growing opposition: “To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists.” In February 2002, Ashcroft made waves when he crooned a patriotic song he had written, “Let the Eagle Soar” (complete with backing track) at a North Carolina theological seminary.
Feingold may have been a lonely voice in the Fall of 2001, but he gradually found anti-Section 215 allies in the American Civil Liberties Union (ACLU) and the American Library Association (ALA). Hundreds of librarians went public with stories of record requests from FBI agents and posted surveillance warnings on their computer terminals. Then-Representative Bernie Sanders and libertarian Ron Paul co-sponsored The Freedom to Read Protection Act, a bill devoted to exempting libraries from Section 215. Two similar bills languished in the Republican-controlled Senate.
In mid-2003, Ashcroft decided to respond forcefully and embarked on an 18-city tour defending the Patriot Act. He asked New Yorkers to visit lifeandliberty.gov, a new Department of Justice website that explained how the Act had helped thwart attacks. He asked Boise attendees to imagine a “remote control device” exploding in the crowd. He weathered a 1,200-person protest outside Faneuil Hall in Boston, where then-Massachusetts Governor Mitt Romney hosted him at a private gathering of law enforcement officials.
As the tour progressed, Ashcroft’s rhetoric increasingly targeted his enemies at the ACLU and the ALA. On September 15th, at a meeting of the National Restaurant Association, the Attorney General cuttingly imitated the rhetoric of his enemies: “Your local library has been surrounded by FBI agents. Agents are working around the clock, like ‘The X Files.’ They’re dressed in raincoats, dark suits, sporting sunglasses. They stop patrons and librarians and interrogate everyone like Joe Friday. In a dull monotone, they ask every person exiting the library, ‘Why were you at the library? What were you reading? Did you see anything suspicious?'”
Ashcroft’s sarcastic remarks ignited an even greater firestorm. ALA president (and current Librarian of Congress) Carla Hayden released a scathing statement demanding that the government release data on the usage of Section 215. Ashcroft almost immediately agreed. He wrote a memorandum to then-FBI Director Robert Mueller explaining that he was declassifying Section 215 information given his “concern that the public not be misled.” In the course of the memo, Ashcroft revealed that Section 215 had never once been used to obtain library files. The FBI had used the comparatively low-profile National Security Letters (NSLs)—another Patriot Act amendment—to accomplish the same goal. In effect, Ashcroft’s detractors had zeroed in on the wrong provision. Ashcroft’s declassification, in a surreal turn, defused the situation.
The legacy of Section 215 did not end with Ashcroft. Although it wasn’t used for library searches, the provision went on to give the legal basis for the National Security Agency’s widespread collection of Americans’ telephone metadata records, made infamous by Edward Snowden’s 2013 revelations. Currently, Section 215 hangs in the balance as intelligence agencies mull the utility of the surviving Patriot Act amendments.
The original controversy over Section 215, however, has all the elements—party polarization, propagandistic rhetoric, calculated declassifications—that define Trump’s current bluster over the Russia investigation and contour the election that is now upon us. Much has changed in the Republican Party over the last 17 years, but there is a decided hint of 2020 in Ashcroft’s Patriot Act bombast…
Don’t miss Ken Wainstein and Lisa Monaco’s breakdown of Trump’s declassification push on this week’s episode of United Security. For more on Ashcroft’s legacy as Attorney General, check out Nancy Baker’s 2006 General Ashcroft: Attorney at War. For more on the legacy of Section 215, take a look at the May 2015 Inspector General report on uses of the provision. For a briefer overview of Section 215 in the Ashcroft years, read Justin Elliott’s pithy ProPublica piece “Remember When the Patriot Act Debate was All About Library Records?”
Catch up on the Time Machine’s deep dives into history, which offer context to understand our present challenges, including these recent pieces: