ACLU Presses for Full Disclosure on Government's New Snoop Powers

January 17, 2003 12:00 am

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NEW YORK – The American Civil Liberties Union today said it was disappointed but not surprised by the government’s meager response to a request for information about the FBI’s use of new powers to snoop on innocent citizens and that it may soon return to court to obtain documents the government is withholding.

“Once again, the Attorney General is insisting on keeping the public in the dark about matters of pressing national concern,” said Jameel Jaffer, an attorney with the ACLU’s Technology and Liberty Program. “Over the next weeks, we hope to persuade the district court to order the government to disclose any records that are being withheld arbitrarily or unnecessarily.”

The ACLU and the Electronic Privacy Information Center (EPIC) filed the Freedom of Information Act request in August, as attorneys for themselves, for the Freedom to Read Foundation, and for the American Booksellers Foundation for Free Expression. The lawsuit was filed in October, when it became clear that the Attorney General did not intend to respond expeditiously without judicial intervention. In November, Judge Ellen Segal Huvelle ordered the government to respond to the request for information by January 15. The government has now said that it has provided all of the records it intends to provide without further litigation.

“Although the Attorney General has supplied us with over 200 pages of material in response to our request,” Jaffer said, “none of those pages addresses our concerns about the new surveillance powers. Much of the material is so heavily redacted that it is meaningless.”

He added that the Office of Intelligence Policy and Review withheld several documents altogether, citing national security concerns, and that the FBI withheld other documents because it could not access its own computer files. “Obviously,” Jaffer said, “the FBI’s inability to access its own files raises troubling questions in its own right.”

David Sobel, General Counsel for EPIC, explained that the court may yet order the government to turn over the records it has withheld. “The government is so aggressively using its power to classify records that the public is now being denied essential information about government policy and conduct,” he said. “This kind of secrecy is indefensible, and it suggests a lack of respect for basic principles of democracy.”

The August 21, 2002 Freedom of Information Act request sought statistical and other general information about the FBI’s use of new surveillance authority under the USA PATRIOT Act, citing concerns that the authority threatens the freedoms of speech and association and the guarantee against unreasonable searches. The request asked, among other things, how often the FBI has monitored the

communications of United States citizens who are not suspected of any crime, and how often the FBI has investigated people based on their engagement in activity that is protected by the First Amendment. The request also asked how often the FBI has ordered libraries, bookstores, and Internet service providers to turn over information about their patrons or customers.

“The release of the records we have asked for would not jeopardize ongoing investigations or undermine the government’s ability to respond to new threats,” Sobel emphasized. “It would, however, allow the public to determine for itself whether the new surveillance powers are necessary and whether the FBI is abusing them.”

Under a schedule set forth by Judge Huvelle, the government must submit legal papers by January 24 justifying its refusal to comply with the information request. The ACLU/EPIC response to the government is due on February 6, and a government reply brief is due on February 17, after which oral argument on the matter can be scheduled.

In addition to Jaffer of the ACLU and Sobel of EPIC, the attorneys in the case are Ann Beeson, Associate Legal Director of the ACLU, and Arthur B. Spitzer, Legal Director of the ACLU of the National Capital Area.

The government’s letters to the ACLU, as well as samples of the redacted documents, are online at /node/35412

The ACLU’s legal papers are online at: /node/35408 and /node/35409

For more information on the FOIA action, including links to the original request, go to /node/10786.

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