ACLU Letter to Senator Feinstein Addressing Abuses of the Patriot Act by the Government

April 4, 2005

Dear Senator Feinstein:

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Thank you for your letter of March 25 inquiring about abuses of the USA PATRIOT Act (""Patriot Act"") enacted into law 45 days after the September 11, 2001 attacks. In its three and one-half years, the government has abused and misused the Patriot Act repeatedly, without apology or regret, and while seeking significant expansions of powers granted under the Patriot Act. We are hopeful that at the Patriot Act hearings that commence tomorrow with the testimony of Attorney General Gonzales and FBI Director Mueller, you will explore these abuses and misuses, and will work to curtail them with appropriate oversight and legislation.

Secrecy permeates the Patriot Act. As ACLU's Timothy H. Edgar pointed out in his brief October, 2003 e-mail message to your staff,[1] many of the most invasive and dangerous powers in the Patriot Act are exercised secretly, and some are accompanied by statutory gag orders. Moreover, the Administration has taken the posture that information that is embarrassing to it must be kept secret for reasons of national security. For these reasons, it has been extremely difficult to uncover information about how the Patriot Act has been used, and even information about whether particular sections have been used at all. We have repeatedly sought this information in letters, requests under the Freedom of Information Act (FOIA) and in FOIA litigation.

We share the concerns you expressed to your constituents (including the over 100,000 who are ACLU members) in a September 13, 2004 e-mail message about the Administration's abject failure to be forthcoming in how it has used the Patriot Act. As you put it,

 ? I have repeatedly requested that the Department of Justice undertake what I consider to be a task they should have begun without prompting[:] carrying out an objective, comprehensive review of the effect and efficacy of the sixteen provisions set to expire next year. I think it not only reasonable, but prudent, to make this effort. Who knows what we will find[?] [M]aybe we need to repeal some provisions, maybe we need to strengthen them. ?
? I have raised this issue numerous times, including directly to the Attorney General. At least one report has been issued, but it falls far short of being a comprehensive analysis of the sunset provisions. ?

Despite the Administration's efforts to cover up information about how controversial provisions of the Patriot Act have been used, some information has become public. This information is disturbing in and of itself, and may be emblematic of other abuses that have not yet become public. Reports indicate that the government has used the Patriot Act to: ·

  • Secretly search the home of Brandon Mayfield, a Muslim attorney whom the government wrongly suspected, accused and detained as a perpetrator of the Madrid train bombings;
  • Serve a National Security Letter (NSL) on an Internet Service Provider (ISP) so coercive under the terms prescribed by the statute that a federal court struck down the entire statute - as vastly expanded by the Patriot Act - used to obtain information about e-mail activity and web surfing for intelligence investigations;
  • Gag that ISP from disclosing this abuse to the public, and gag the ACLU itself, which represents the ISP, from disclosing this abuse to the public when the ACLU became aware of it, and from disclosing important circumstances relating to this abuse and other possible abuses of the gag, even to this very day;
  • Charge, detain, and prosecute a Muslim student in Idaho, Sami al-Hussayen, for providing ""material support"" to terrorists because he posted to an Internet website links to objectionable materials, even though such links were available on the websites of the government's own expert witness in the case and on the website of a major news outlet;
  • Deny, on account of his political beliefs, admission to the United States of a Swiss national, Tariq Ramadan, a prominent Muslim scholar who was to assume a teaching position at Notre Dame University; and
  • Investigate and prosecute crimes that are not terrorism offenses, even though it cited terrorism prevention as the reason Congress should enact the law, and cites terrorism prevention as the reason why it cannot be changed.

These Patriot Act abuses and misuses are detailed below.

Search of Brandon Mayfield's Home
On March 11, 2004 a bomb exploded in Madrid killing hundreds of people. The government obtained from Spanish authorities fingerprint images from a blue bag found at the scene containing seven detonators thought to be of the same type used in the bombing. The FBI concluded that the fingerprints matched those of a Portland, Oregon attorney, Brandon Mayfield because it had retained a record of his fingerprints when he joined the military. He was arrested on May 6 on a material witness warrant that alleged, among other things, that Mayfield, a Muslim, was seen driving from his home to the Bilal mosque, where he worshipped.

On March 24, 2005, the FBI admitted to Mayfield's attorney that his home had been searched under provisions of the Foreign Intelligence Surveillance Act (FISA), which the Patriot Act had dramatically expanded. It admitted that it copied four computer hard drives, digitally photographed several documents, seized ten DNA samples and took approximately 335 digital photographs of the residence and Mr. Mayfield's property.

It appears that the government searched Mayfield's home in an effort to solve the Madrid bombing, and that the Patriot Act made the search possible. Prior to the Patriot Act, the government could conduct a FISA search only if the ""primary purpose"" of the search was to gather foreign intelligence information. Under Section 218 of the Patriot Act, gathering such information need only be a ""significant purpose"" of a FISA search. The search occurred shortly after the Madrid bombing while the FBI had initiated an investigation of the bombing and while it was working to help Spanish authorities solve the bombing quickly. Under these circumstances, it is difficult to imagine that a search of the suspect's home was for something other than primarily to find incriminating evidence.

As the leading Senate proponent of the ""significant purpose"" test, we hope that you will closely question FBI Director Mueller and Attorney General Gonzales about this search. Should they demur, we hope that you ask them to provide the Judiciary Committee, to Brandon Mayfield, and to the public the application for a FISA court order that resulted in the warrant to secretly search Mayfield's home. That application, we believe, will show that the government used the Patriot Act to search his home because it will assert that the Patriot Act's ""significant purpose"" test was met, and the court will have applied this test to the application it approved.

The ""significant purpose"" test is one of the provisions of the Patriot Act that will sunset on December 31, 2005. By lowering the standard of a FISA search, the Patriot Act made it much more likely that mistakes like the one made in the Brandon Mayfield case would occur. Moreover, the rights of individuals subject to FISA searches are much more limited. Indeed, had the government secured certain evidence from the FISA search of Mr. Mayfield's home it is not clear that Mr. Mayfield would have had the right to adequately contest the evidence that was being used against him. As you can see from the case of Mr. Mayfield, the potential for abuse is significant.

We are not asking that you support the sunsetting of this provision, even though we believe it is unconstitutional. Instead, we hope that you will support legislation to ensure that should an innocent person like Brandon Mayfield ever face trial and the penalty of death for a terrorist crime he did not commit, that that innocent person will have adequate access to the information that the government used to conduct a FISA search of his home or office. This legislation, which would use as a model the Classified Information Procedures Act to govern defendants' access to information in a FISA warrant used to conduct a physical search or to eavesdrop on conversations, was offered as an amendment to S. 113 (the ""lone wolf bill"") at the Senate Judiciary Committee mark-up in the last Congress. While you did not vote on this amendment at the mark-up, we hope that you consider it a reasonable effort to balance national security and a defendant's rights, and as the leading Senate proponent of the ""significant purpose"" test, support such legislation this year. We also hope you will support increased annual public disclosure of the use FISA, including disclosure to the public about the number of U.S. citizens and lawful permanent residents who, like Brandon Mayfield, are the subject of FISA surveillance.

Unconstitutional Seizures of ISP Records
Section 505 of the Patriot Act expanded the government's authority to use National Security Letters (NSL's) to seize information from businesses and others, with no judicial approval. Prior to the Patriot Act, the government could use NSL's to obtain records about alleged terrorists or spies - people who were thought to be ""foreign powers"" or their agents. Financial, travel and certain Internet Service Provider (ISP) records are accessible under the NSL authority. Section 505 changed the law to allow the use of NSL's to obtain such records about anyone without the limitation that they be agents of foreign powers. In the Intelligence Authorization Act of 2004[2] Congress further expanded the NSL letter authority to permit seizure of casino and other records.

On a date that the government maintains must be kept secret for reasons of national security, the FBI served an NSL on an ISP the identity of which the government also claims must be kept secret for reasons of national security. Through its NSL authority at 18 U.S.C. Section 2709, the government can seek certain sensitive customer records from ISPs - including information that may be protected by the First Amendment - but the ISP can never reveal that it has been served with an NSL, and nothing in the statute suggests that the NSL can be challenged in court. On behalf of the ISP and itself, the ACLU challenged the statute as amended by the Patriot Act, as a violation of the First and Fourth Amendments because it does not impose adequate safeguards on the FBI's authority to force disclosure of sensitive and constitutionally protected information and because its gag provision prohibits anyone who receives an NSL from disclosing in perpetuity and to any person even the mere fact that the FBI has sought information.

On September 28, 2004, Judge Victor Marrero of the Southern District of New York issued a landmark decision striking down as unconstitutional the NSL statute and its gag provision. The court struck down the entire statute as violative of Fourth and First Amendment rights, thus rendering any use of the statute an abuse of those rights. The court found that there have been hundreds of such uses.[3] It found that the statute was abusive in practice because it sanctioned NSL's that coerced immediate compliance without effective access to court review or an opportunity to consult with counsel:

The form language of the NSL served upon [plaintiff ISP] Doe, preceded by an FBI phone call, directed him to personally provide the information to the FBI, prohibited him, his officers, agents and employees from disclosing the existence of the NSL to anyone, and made no mention of the availability of judicial review to quash or otherwise modify the NSL or the secrecy mandated by the letter. Nor did the FBI inform Doe personally that such judicial review of the issuance of the NSL or the secrecy attaching to it was available. The court concludes that, when combined, these provisions and practices essentially force the reasonable NSL recipient to immediately comply with the request.[4]

In finding the statute unconstitutional under the Fourth Amendment, Judge Marrero referred repeatedly to the amendments made by Section 505. He noted as an example of the kind of abuse now authorized by the statute that it could be used to issue a NSL to obtain the name of a person who has posted a blog critical of the government, or to obtain a list of the people who have e-mail accounts with a given political organization.[5] The government could not have obtained this information with an NSL prior to the Patriot Act amendment in Section 505, unless the blogger or the people with such accounts were thought to be foreign powers or agents of foreign powers. The court also cited Patriot Act Section 505 as a reason it struck down the statute on First Amendment grounds. The court determined that the tie to foreign powers - eliminated by Section 505 - ""limits the potential abuse"" of the statute[6] and distinguishes it from other intelligence search provisions that retain the requirement of such a tie and include a statutory gag provision.

Because of the gag in 18 U.S.C. Section 2709(c), the government obtained a sealing order it has consistently used to suppress wholly innocuous information in the litigation. Until the court struck down the statute, the government prevented the ACLU from disclosing that it represented someone that had been served with an NSL, and from even acknowledging that the government had used a statutory power. The government has demanded that the ACLU redact a sentence that described its anonymous client's business as "provid[ing] clients with the ability to access the Internet."" Ironically, the government even insisted that the ACLU black out a direct quote from a Supreme Court case in an ACLU brief: ""The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.""

The gag in Section 2709 would effectively prevent an ISP (or its lawyers) from disclosing other abuses of Section 2709. For example, if the government was targeting someone because of their First Amendment activity, or if the ISP was being forced to turn over First Amendment protected information about associational activities, the gag would bar disclosure of this abuse. In striking down the gag provision under the First Amendment, Judge Marrero wrote: ""Democracy abhors undue secrecy. . . . [A]n unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society.""[7]

Exclusion of Muslim Scholar Tariq Ramadan from the U.S.
Section 411 of the Patriot Act permits the government to exclude non-citizens from the country if in the government's view they have ""used [their] position of prominence to endorse or espouse terrorist activity or to persuade others to support terrorist activity."" While the provision ostensibly focuses on those who sanction terrorism, news reports and other information suggest that the government is using the provision more broadly to deny admission to those whose political views it disfavors.

Tariq Ramadan, a widely respected Muslim scholar who was named a "spiritual leader" in Time Magazine's Top 100 Innovators of the 21st Century series, was forced to resign his position at the University of Notre Dame after the government revoked his visa last July. A spokesman for the Department of Homeland Security who was quoted in the Washington Post[8] cited the statutory language of Section 411 as the reason he was denied admission. The government's citation to the language of Section 411 combined with Ramadan's prolific writing and speaking suggests that Ramadan's exclusion was based on his scholarly writings and lectures. There is no doubt that Ramadan uses his position of prominence to espouse his political beliefs. Notably, Ramadan, who denounces use of violence in the name of Islam, had already been granted a visa after undergoing an extensive security clearance process and had previously been permitted to enter the country on numerous occasions.

Ramadan is regarded by many as Europe's leading moderate Muslim intellectual. The American Academy of Religion, a group of religious scholars, and Committee on Academic Freedom of the Middle East Studies Association of North America objected to the visa denial. They said that nothing in the public record or in Ramadan's writings would indicate any basis for allegations of links to terrorists. ""Dr. Ramadan is a scholar very much in the public eye in Switzerland, where he resides and teaches, and in Europe more generally. To us, these allegations smack of a character assassination campaign designed to suppress Dr. Ramadan's voice at a prominent American university. ? Denying qualified scholars entry into the United States because of their political beliefs strikes at the core of academic freedom."" [9]

Prosecution of Sami al-Hussayen for First Amendment Activities
The Department of Justice also used the material support provisions of the Patriot Act to prosecute Muslim student Sami al-Hussayen for engaging in First Amendment activities. Section 805 of the Patriot Act made it a crime to provide material support in the form of ""expert advice and assistance"" to a designated foreign terrorist organization. Al-Hussayen, a 34-year old doctoral candidate at the University of Idaho and a computer expert, was charged with providing ""expert advice and assistance"" because, among other things, he volunteered as a Webmaster for the Islamic Assembly of North America - an organization the government had not put on its list of foreign terrorist organizations. The government charged that this volunteer activity constituted expert advice and assistance.

Al-Hussayen's web pages provided many links, including links to ""fatwas"" that advocated criminal activity and suicide operations, but that were not written by al-Hussayen. Essentially, he was reporting what others said - something journalists do every day. Al-Hussayen's lawyer also established that Reuven Paz, a prosecution witness, admitted that he had posted much of the same information on his own website and that the BBC did as well.[10] The Justice Department did not stop this abuse of the Patriot Act, and detained al-Hussayen for one and one-half years on minor immigration charges. It was a jury that stopped this abuse by finding al-Hussayen not guilty of all terrorism charges leveled against him. He was later deported on immigration charges.

Because of Secrecy, This List of Abuses Is Not Exhaustive
The abuse examples we have provided usually come to the public eye as a result of efforts of the government to prosecute a person, deny them admission to the U.S., or to enforce a records request. They are likely the tip of the iceberg in terms of abuses of the investigative powers the government has under the Patriot Act because most such investigation is conducted secretly. The ACLU and other non-governmental organizations do not have regular access to classified information. This reality cries out for oversight from Congress. We believe that as a member of both the Intelligence and Judiciary Committees, you are among the most well-positioned members of Congress to conduct this oversight, identify abuses, and where appropriate, bring them to the public's attention.

Moreover, secrecy surrounding use of portions of the Patriot Act chills the exercise of constitutionally protected rights. It can cause individuals to adjust their behavior to steer far clear of possible scrutiny and surveillance. For example, Section 215 of the Patriot Act permits the government to get a court order requiring that any document or thing be turned over to it upon the government's assertion that document or thing is ""sought for"" an investigation to protect against international terrorism or clandestine intelligence activities. According to information connected to the ACLU's challenge to the constitutionality of Section 215, its reach has inhibited organizations and individuals from publicly expressing their political views, attending mosque and practicing their religion, engaging in political activity, donating money to legitimate charitable organizations, and visiting particular websites, for fear such activity will be disclosed to the government and investigated.

For example, as a result of members' fears about Section 215 and the possibility that the government will target the organization and its members, the Muslim Community Association of Ann Arbor has experienced a significant decline in active member participation in the organization's activities: a board member who had previously served as a public spokesperson for the organization withdrew from the Board, and the organization is more careful not to invite ""controversial"" speakers. The Islamic Center of Portland has seen a similar decline in active membership: fewer members attend its mosque; it has had a difficult time raising sufficient funds, and members have requested it stop taking positions on political issues and stop participating in rallies.

As you consider the extent to which the Patriot Act has been abused, we urge you to consider as well that reasonable limits could be put on provisions of the Patriot Act, such as Section 215, to head off legitimate concerns about potential abuses that have caused some Americans to curtail the exercise of their own rights.

Misuses of the Patriot Act
The Administration billed the Patriot Act as an anti-terrorism tool while it pushed the law through Congress. As he signed the bill into law, the President portrayed it as a measure needed to combat al-Qaeda. ""This legislation is essential not only to pursing and punishing terrorists, but also preventing more atrocities at the hands of the evil ones.""[11] However, since it has been on the books, the Patriot Act has frequently been used outside of the terrorism context, with problematic results. Since ""improper or excessive use"" is often regarded as one of the definitions of abuse[12] about which you have inquired, we thought it appropriate to point out a few of those misuses:

  • The FBI used the Patriot Act against Michael Galardi, the owner of two Las Vegas strip clubs, and several local officials that it believes accepted bribes from Galardi. Investigators reportedly delivered subpoenas under Section 314 of the Patriot Act - portrayed to Congress as necessary to undercut terrorist financing -- to two Las Vegas stockbrokers ordering the release of detailed business records that prosecutors hope will reveal hidden proceeds that may be evidence of bribery. Senator Reid criticized the FBI's actions, saying, ""The law was intended for activities related to terrorism and not to naked women. Let me say, with Galardi and his whole gang, I don't condone, appreciate or support all their nakedness. But having said that, I haven't heard anyone say at any time he was involved with terrorism.""[13] 
  • The Justice Department used the Patriot Act against a lovesick 20-year-old woman from Orange County, CA, who planted threatening notes aboard a Hawaii-bound cruise ship on which she was traveling with her family. The woman, who said she made the threats to try to return home to her boyfriend, was sentenced to two years in federal prison because of a provision in the Patriot Act targeting threats of terrorism against mass transportation systems.[14]
  • In July 2002 Czech-born University of Connecticut graduate student, Tomas Foral, 26, became the first person to be charged under the USA Patriot Act for possession of a biological agent with no ""reasonably justified"" purpose, a crime carrying a sentence of up to a decade in prison. His crime: discovering 35-year-old tissue samples from an anthrax-infected cow in a broken university cold-storage unit and moving them to a working freezer. Unfortunately for Foral, that freezer broke at the height of the anthrax scare and a tipster who found the samples phoned in Foral's name to the authorities. Foral finally agreed to community service and some restrictions on his activities. To his chagrin, however, he also found after he was detained when trying to reenter the country that his name had been added to the Interagency Border Inspection System, a government watch list.
  • On March 23, 2005, the Department of Justice charged David Banach of Parsippany, New Jersey under the Patriot Act for shining a laser beam on an airplane using a hand held device. Banach, age 38, faces a statutory maximum of 20 years in prison and a $250,000 fine for the offense, even though the FBI admitted that the incident had no connection to terrorism. Banach claimed that he was using the device to look at stars with his seven year-old daughter from the deck of his home.
  • Section 213, the ""sneak and peek"" warrant provision of the Patriot Act, appears to have been used almost exclusively outside of terrorism investigations. Indeed, when the Department of Justice selectively reported some of the instances in which it has used sneak and peek warrants, its list consisted primarily of investigation of non-terrorism offenses, even though it cites counter-terrorism rationales as the reasons why reasonable limits should not be put on these searches.

There are many other examples. The Justice Department is candid and unapologetic about its use of the Patriot Act in garden-variety, non-terrorism cases. In a Justice Department report on the efficacy of the Patriot Act given to members of Congress in September 2003 the Department claimed that its expanded domestic spying powers, including nationwide warrants to obtain e-mail and electronic evidence, have ""proved invaluable in several sensitive non-terrorism investigations"" including tracking an unidentified fugitive and an investigation into a computer hacker who stole a company's trade secrets.

The upcoming hearings provide an opportunity not only to explore abuses of the Patriot Act, but also the extent to which it is being used outside of the terrorism context, and which provisions of the law ought to be confined to terrorism.

Conclusion
These reported abuses and misuses of the Patriot Act provide ample evidence that the Patriot Act should be re-visited. We agree with the statement that you made at the September 22, 2004 hearings that the Judiciary Committee should be reviewing all of the provisions of the Patriot Act, and not just those that are sunsetting. Other provisions that should be carefully considered include Section 505, the provision expanding NSL authority, Section 213, the provision granting statutory authorization to ""sneak and peek"" searches, and Section 802, the provision defining ""domestic terrorism"" so broadly that it would encompass acts of civil disobedience that cannot be considered ""terrorism."" The Patriot Act sunsets also provide an opportunity for Congress to look beyond the four corners of the Patriot Act at other post 9-11 measures that threaten civil liberties. We look forward to working with you to address the concerns that we raise here, and we ask that you include this letter in the record of the upcoming hearings. We also would welcome the opportunity to testify in any future hearings on the Patriot Act.

Sincerely,

Anthony D. Romero
Director

 

Footnotes

[1] Mr. Edgar was responding to your staff's inquiry about abuses of the Patriot Act in California, not nation-wide. He provided your office with a report prepared by the ACLU of Northern California that detailed a number of serious investigative abuses by the FBI and other government agencies, including harassment of Muslims and political activists. His brief message indicating that Patriot Act powers are often used under a shroud of secrecy should not be misconstrued as suggesting that the Patriot Act had not been abused.
[2] Pub. L. No. 108-177, Section 374 (Dec. 13, 2003).
[3] Doe v. Ashcroft, (04 Civ. 2614, S.D.N.Y. Sept. 28, 2004), at 63-64. The court concluded that hundreds of NSL's had been requested by the FBI from October, 2001 through January, 2003, and hundreds must have been issued during the life of the statute. The government takes the position that even the number of NSL's it issues cannot be disclosed for reasons of national security, though it has disclosed publicly to Congress a number of such uses. See, e.g. ""H.R. 3179, The 'Anti-Terrorism Intelligence Tools Improvement Act of 2003,"" Hearings Before the Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 108th Cong. (2004) (statement of Thomas J. Harrington, Deputy Assistant Director of the FBI Counterterrorism Division).
[4] Id. at pp. 44-45.
[5] Id. at p. 75.
[6] Id. at p. 93.
[7] A massive abuse of another NSL Patriot Act that authority was widely reported in the press and subsequently denied by the FBI, has never been adequately investigated. According to reports, in late December, 2003, casino operators and airlines that fly into Las Vegas, Nevada were ordered to turn over to the government guest lists and arriving passenger manifests on approximately 270,000 visitors coming to Las Vegas to celebrate New Years. See, e.g. Rod Smith, ""Sources: FBI Gathered Visitor Information Only In Las Vegas,"" Las Vegas Review-Journal January 7, 2004. Reports indicate that casino operators turned over the information only after meeting with FBI officials and after receiving NSL's and subpoenas requiring them to turn over the information. Id. This information was sought even though FBI and local law enforcement agencies said there was no specific and credible threat aimed at Las Vegas at the time the records were turned over. Id. Requiring the production of such records of hundreds of thousands of people who are not suspected of wrongd

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