Justice Department May Be Using Controversial Patriot Act Powers After All, Letter Reveals

May 20, 2004

In a Related Development, Federal Court Orders FBI To Disclose Patriot Act Records to ACLU

FOR IMMEDIATE RELEASE

WASHINGTON - Attorney General Ashcroft's widely publicized announcement last September that the Justice Department had not yet used a controversial provision of the Patriot Act is now under question in two pending lawsuits filed by the American Civil Liberties Union, the group revealed today. 

"Attorney General Ashcroft is playing hide-and-seek with the American public about whether and how the government is using a dangerous new surveillance power," said Ann Beeson, Associate Legal Director of the ACLU.

At issue is Section 215 of the Patriot Act, which vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents. 

In the ACLU's challenge to Section 215 pending in Detroit, the Justice Department yesterday sent a letter to the court which implies that they are now using the provision. 

In a court hearing last November, the government argued that the ACLU's challenge should be dismissed because Section 215 had not yet been used, Beeson explained. But in the May 19 letter to Judge Denise Page Hood of the U.S. District Court in Detroit, a senior trial counsel in the case said that Ashcroft's announcement only covered the period between October 26, 2001 (when the law was passed) and September 18, 2003 (the date Ashcroft declared that the power had not been used).

Although the government letter noted that it must provide a classified report to Congress next month with the total number of Section 215 orders issued since last September, the government said it would not "undertake an obligation to keep the Court or the plaintiffs informed" of that number. The judge has not yet ruled on the government's pending motion to dismiss the case. 

"We can only conclude that the government is now using the Section 215 power and that it is informing the court in an attempt to forestall a ruling based on a faulty premise," Beeson said. 

The ACLU's clients in the challenge greeted the news with apprehension. "When this case was filed, we were concerned that our organization's records would be the target of a government investigation in spite of the fact that we have done nothing wrong," said Ismael Ahmed, Executive Director of ACCESS, a Detroit-area social service agency in the Arab community whose clients include victims of torture. "Our concern is even greater if even the court has no right to know if a Section 215 order has been issued."

In a second case, a Freedom of Information Act request for information about the use of Section 215, a federal court in Washington has rejected the government's attempt to delay disclosure of the records, and has ruled that the ACLU is entitled to expedited processing of the request. 

Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia agreed with the ACLU that the information "unquestionably implicates important individual liberties and privacy concerns" given "the ongoing debate regarding the renewal and/or amendment of the Patriot Act."

Ironically, Judge Huvelle said that Ashcroft's announcement last year that the Section 215 power had not yet been used had helped, not harmed, the ACLU's arguments in the FOIA case, because he had "implicitly, if not explicitly" acknowledged the public interest in information relating to the government's use of Section 215. 

Judge Huvelle is expected to rule later today on when the government must produce the documents the ACLU requested. The government has asked the court to withhold the documents until a date after the Presidential election and after the crucial debate over the extension of certain "sunset" provisions of the Patriot Act is concluded. 

"It appears that the government believes protecting the President from criticism about the Patriot Act in an election year is in the national interest," said Jameel Jaffer, an ACLU staff attorney in the FOIA case. "We are confident that the court will see through this political gambit and set a reasonable schedule for disclosure that will allow the public to make up its own mind about the Patriot Act in a more timely fashion."

Noting that the court was "constrain[ed]" by precedent, Judge Huvelle upheld her earlier denial of the ACLU's request that the government disclose the specific number of times the Section 215 power had been invoked. The May 19 letter to Judge Hood in Detroit appears to answer this question in part, by implying that the number is no longer "zero," as Ashcroft declared last year, the ACLU said.

The ACLU made the FOIA request jointly with the Electronic Privacy Information Center and the American Booksellers Foundation for Free Expression. A web feature about the FOIA request, including documents previously obtained, is online at /patriotfoia

A web feature on the ACLU challenge to Section 215 is online at /cpredirect/16821

The letter to Judge Denise Page Hood in the Detroit case is online at /cpredirect/17398

Judge Huvelle's order in the FOIA case is online at /cpredirect/17397

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