Newly Unredacted Documents Confirm Lack Of Oversight Of Military's Domestic Surveillance Powers

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Records Released In ACLU's National Security Letters Lawsuit

NEW YORK - On the heels of an internal report criticizing the FBI for abusing its power to issue National Security Letters (NSLs), newly unredacted documents released today as a result of an American Civil Liberties Union and New York Civil Liberties Union lawsuit reveal that the Department of Defense (DoD) is using the FBI to circumvent legal limits on its own NSL power and may have overstepped its authority to obtain private and sensitive records of people within the United States without court approval. The previously withheld records also reveal that the military is secretly accessing these private records without providing training, guidance, or any real recordkeeping.

"It looks like the Defense Department is evading the legal limits placed on the military's surveillance powers by simply getting the FBI to do its bidding," said Melissa Goodman, staff attorney with the ACLU National Security Project. "If the Defense Department is asking the FBI to get information it is not allowed to access on its own, there is a serious problem within both agencies. Clearly these agencies cannot police themselves - the time has come for less secrecy, stricter guidelines, and meaningful oversight to ensure that the NSL power is not abused anymore."

NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or "gagged," from disclosing that they have received the letters. While the FBI has broad NSL powers and compliance with FBI-issued NSLs is mandatory, the Defense Department's NSL power is more limited in scope, and, in most cases, compliance with Defense Department demands is not mandatory.

The previously redacted documents made public today are the final materials that will be released in the ACLU's lawsuit against the Defense Department. Since last year, DoD has turned over more than 1,000 pages of documents to the ACLU, including nearly 500 NSLs which show that the military may have overstepped its legal authority to obtain financial and credit records, provided misleading information to Congress, and silenced NSL recipients from speaking out about the records requests.

The Defense Department documents uncovered today contain numerous revelations of potential abuses of the NSL power and suggest a serious lack of oversight of the military's use of NSLs:

• Documents show the Defense Department may be flouting the law and, by asking the FBI to issue the NSLs on their behalf, accessing documents it is not entitled to receive. (See document 72)
• A newly unredacted copy of the results and recommendations of an internal program review prompted after the New York Times reported potential abuses of the military's NSL power shows that:
  • The Navy's use of NSLs to demand domestic records has increased significantly since September 11; (See document 68)
  • Contrary to prior claims by the military, its NSL use is not limited to investigating only DoD employees; (See document 72)
  • The Defense Department has issued NSLs without providing any real training or guidance; (See documents 56, 57, & 72)
  • The Defense Department does not keep track of how many NSLs the military issues or what information is obtained through these orders. (See documents 56, 57, & 72)

In April 2007, the ACLU filed Freedom of Information Act requests with both the Defense Department and the CIA seeking all documents related to their use of NSLs to gain access to personal records of people in the United States. In June, the ACLU filed a lawsuit to force those agencies to turn over the requested documents. The Defense Department's NSL documents are the final materials received by the ACLU as part of this lawsuit.

Earlier this month the Department of Justice's Office of the Inspector General (OIG) released a report on the FBI's use of National Security Letters that revealed a systemic, widespread abuse of the NSL power. The OIG report noted two instances where the FBI, on its own initiative, issued NSLs to obtain sensitive information after the Foreign Intelligence Surveillance Court had already rejected its requests. The report also revealed that the FBI issued almost 50,000 NSLs in 2006. The previously withheld documents obtained by the ACLU prove the Defense Department's sloppiness in handling its NSL power is consistent with the OIG's report on the FBI's use of NSLs.

"The Constitution protects individuals against government searches of private information without proper authorization. But without careful oversight, those constitutional protections are too easily evaded," said Arthur Eisenberg, Legal Director of the NYCLU. "Excessive secrecy and unchecked authority surrounding the military's use of National Security Letters present an invitation for abuse."

The ACLU has successfully challenged the NSL power in two separate lawsuits. In one case involving an Internet Service Provider, a federal court in September struck down the NSL provision of the Patriot Act because its gag provisions were unconstitutional.

Attorneys in the case are Goodman and Jameel Jaffer of the ACLU National Security Project and Eisenberg of the NYCLU.

Today's unredacted documents are available at: www.aclu.org/safefree/nationalsecurityletters/34706res20080401.html

All of the Defense Department documents obtained by the ACLU in this lawsuit are available at: www.aclu.org/safefree/nationalsecurityletters/32088res20071014.html

More information about the ACLU's challenges to the NSL power is available at: www.aclu.org/nsl