Documents Show Ashcroft is Bypassing Courts With New Spy Powers, ACLU Says

March 24, 2003 12:00 am

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NEW YORK – Documents obtained by the American Civil Liberties Union suggest that the Attorney General is aggressively wielding a disturbing power that – without the approval of a judge – allows the government to force banks, Internet service providers, telephone companies, and credit agencies to turn over their customers’ records.

Special web feature on ACLU’s PATRIOT FOIA case

“Without judicial oversight, there is simply no assurance that the Attorney General is using this authority in keeping with democratic principles and constitutional rights,” said Jameel Jaffer, an attorney with the ACLU’s Technology and Liberty Program.

Information about the government’s surveillance powers was obtained through a Freedom of Information Act (FOIA) lawsuit filed jointly with the Electronic Privacy Information Center and the American Booksellers Foundation for Free Expression and the Freedom to Read Foundation.

According to documents obtained through the FOIA lawsuit, the government employs “National Security Letters” – signed by Attorney General Ashcroft or a delegate and with no judicial approval – to “compel the production of a substantial amount of relevant information.” The government can use this power to obtain records about people living in the United States, including American citizens, without probable cause that the person has committed any crime. Entities that are forced to turn over records are prohibited from disclosing to their customers – or to anyone else – that the FBI has demanded the records.

The ACLU has always been critical of the letters because they do not require judicial review. However, said Jaffer, under the Patriot Act, “the letters have become a far more invasive and nefarious tool.” Before the Patriot Act, Jaffer explained, National Security Letters could be issued only against people who were reasonably suspected of espionage. The Patriot Act allows the Attorney General to issue National Security Letters even against people who are not suspected of criminal activity or of acting on behalf of a foreign power.

The government has refused to say how extensively it is using its authority to issue the letters. But Jaffer said that the length of the blacked-out lists of National Security Letters suggests that the government is using this power more extensively than other surveillance powers under the Patriot Act that require court approval. The ACLU has created a special web feature with samples of the blacked-out documents and government memos describing the new powers, online at /patriot_foia/

Other recently obtained documents confirm that:

  • The FBI is conducting wiretaps and secret searches in criminal investigations without complying with the usual probable cause requirements;
  • The government has begun to use an extraordinarily broad surveillance provision that could be used to force libraries and bookstores to report on their patrons’ and customers’ reading habits;
  • The FBI is aggressively using pen registers and trap-and-trace devices that allow them to track phone calls and emails;
  • The government plans to use its new surveillance powers not only against suspected terrorists but also against ordinary Americans and permanent residents.

The ACLU explained that it has challenged the government’s refusal to release a number of other relevant documents, which consist principally of aggregate statistical information indicating the extent to which the government has relied on new surveillance powers. On Friday, the ACLU asked a federal judge to order the government to release these documents, saying that the information is essential to the public’s ability to evaluate the new surveillance provisions and that its release would not compromise national security.

In a related case concerning expanded government spy powers, the Supreme Court today rejected a request by the ACLU and Arab-American groups to review an extraordinary decision by a secret appeals court that broadly expanded the government’s powers to spy on U.S. citizens. For more information on that case, see /node/11500

Attorneys in the FOIA lawsuit are Jaffer and Ann Beeson of the ACLU; David Sobel, General Counsel for the Electronic Privacy Information Center; and Arthur B. Spitzer, Legal Director of the ACLU of the National Capital Area.

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