Interested Persons Memo on Congressional oversight of the USA PATRIOT Act and Department of Justice anti-terrorism policies - DOJ's dismissive response on civil liberties

To: Interested Persons
From: Timothy H. Edgar, ACLU Legislative Counsel
Re: Congressional oversight of the USA PATRIOT Act and Department of Justice anti-terrorism policies – DOJ’s dismissive response on civil liberties
Date: June 4, 2003

The House Judiciary Committee recently release a response from the Department of Justice to its questions concerning its use of the USA PATRIOT Act, [1] new regulations and changes in longstanding government policies, such as the Attorney General’s investigative guidelines.[2] In this document, in testimony at Congressional hearings, and in statements to the public, DOJ has responded dismissively to civil liberty concerns.

In fact, the response to the Sensenbrenner/Conyers letter shows:

(1) DOJ did not need many of the powers it obtained in the USA PATRIOT Act or through new regulations and changes in longstanding government policies, such as the Attorney General’s investigative guidelines;

(2) DOJ cited fears of terrorism to get powers without adequate debate which were then used in ordinary criminal cases;

(3) DOJ has failed to answer many of the legitimate questions Congress has posed about its use of the USA PATRIOT Act and other new powers; and

(4) DOJ has been deceptive in describing the scope of the powers it has been granted, apparently to mollify widespread public concern.

The DOJ report and its other statements confirm many of ACLU’s concerns since September 11, 2001 about the need for new powers, and about their potential for abuse.

ACLU’s efforts to obtain information from the Department of Justice have complemented Congress’s own oversight efforts. Indeed, some of the information and documents revealed in DOJ’s answers to the Sensenbrenner/Conyers letter was obtained by the ACLU through the Freedom of Information Act well in advance of the release of this report to Congress.[3]

I. DOJ Did Not Need Many of the Powers It Sought in the USA PATRIOT Act and in Recent Changes to Regulations and Longstanding Policies

The government has not needed any of the new deportation and detention powers enacted in the USA PATRIOT Act. The USA PATRIOT Act broadened the grounds of deportation for political association deemed a threat to national security (section 411) and gave the government a new mandatory detention power for non-citizens that permitted detention without charge for as long as seven days (section 412). The government has not used these provisions of the USA PATRIOT Act (pp. 32-35), stating that its widespread detentions and deportations were all accomplished under its existing statutory powers. Again, it is hard to imagine how DOJ could claim it needs this new deportation and detention authority when it has not been used in the course of what DOJ consistently calls the most comprehensive investigation in the history of the United States.

The Department of Justice has also been dismissive of criticism of its treatment of immigrants detained in the course of the September 11 investigation whom it described as terrorism suspects, but who were never certified under the USA PATRIOT Act as terrorism suspects. DOJ’s own Inspector General has now released a report which makes clear that serious abuses occurred as a result of its “”indiscriminate and haphazard”” tactics. These included lengthy detentions without charge or access to attorneys, confinement of immigrants in excessively harsh conditions, and prolonged detentions that were a result of a “”clearance”” procedure that established what amounted to a presumption of guilt.[4]

The Department of Justice apparently did not need new authority to monitor religious meetings for terrorism purposes. On May 14, 2002, DOJ issued new guidelines to govern the investigation of general crimes and domestic security investigations. Under the new guidelines, FBI agents have the authority to attend any public event, including political or religious meetings, without disclosing their identities and with no indication of any kind that the event will be relevant to any criminal inquiry. When pressed concerning whether FBI agents have entered mosques without any suspicion of criminal activity (as permitted under the new guidelines), DOJ said that, as a result of an “”informal survey”” of 45 of its 56 field offices, ten mosques had been visited since September 11, 2001 by FBI agents who did not disclose their identities. Of those visits, all but one were conducted pursuant to “”open preliminary inquiries or full investigations.”” (p. 39) Under the old guidelines, the use of FBI agents as undercover investigators at religious or political meetings was authorized in such circumstances. Only one undercover visit to a mosque occurred “”pursuant to the Guidelines provision authorizing agents to visit public places and attend public events,”” and no information useful to a terrorism investigation was found. (pp. 39-40). It is hard to imagine how DOJ could claim it needs this authority when it has not been used in the course of what DOJ consistently calls the most comprehensive investigation in the history of the United States.

Impediments to sharing of information between intelligence and law enforcement investigators were almost entirely the result of administrative barriers, not statutory requirements for foreign intelligence surveillance that were eased by the USA PATRIOT Act. In a lengthy explanation of the “”wall”” between foreign intelligence and criminal investigations that existed within the Department of Justice, the DOJ admits “”there was no legal impediment to introducing in a criminal prosecution evidence obtained through FISA before the USA PATRIOT Act”” (p. 12). Instead, the DOJ report describes these barriers as resulting from “”certain court decisions and administrative practice by the Department”” (p. 13).

Despite this, the DOJ report states that the USA PATRIOT Act’s amendment to FISA was needed to permit greater information sharing, but its description actually shows the opposite. Prior to the amendment, to obtain a FISA wiretap, the government was required to certify that gathering of foreign intelligence was “”the purpose”” of the surveillance. Section 218 of the USA PATRIOT Act lowered this standard to allow FISA surveillance if the gathering of foreign intelligence is “”a significant purpose”” of the surveillance. This section eases the standards for obtaining a foreign intelligence wiretap, not the procedures for sharing information that has already been obtained.

In fact, the DOJ is either unwilling or unable to identify even a single case in response to a simple request to “”identify all cases brought since the FISA Review Court’s decision that use information that was previously unavailable under FISA procedures”” (p. 12). Rather, the answers make clear that there simply aren’t any such cases because such information has always been available to criminal prosecutors. Furthermore, as the rest of its response makes clear, whatever administrative barriers existed prior to September 11, 2001 were almost entirely – if not exclusively – a result of DOJ’s own internal practices, not the law.

The DOJ also discloses that, after September 11, 2001, the Attorney General ordered a review of almost “”4,500 intelligence files”” to determine whether any of the files contained information of relevance to a criminal prosecution. The DOJ admits that, even prior to the USA PATRIOT Act, “”intelligence officials could seek approval to ‘throw information over the wall'”” where intelligence evidence demonstrated a crime “”has been, is being, or will be committed”” (p. 14).

The only case that is identified as resulting from the review of intelligence files has nothing to do with September 11 or Al Qaeda. Instead, the case is that of Sami Al-Arian, an Arab American leader in Tampa, Florida who has been accused of raising funds for Palestinian terrorism abroad. The accusations concerning Mr. Al-Arian, whose brother-in-law was imprisoned for years as a result of a secret evidence policy the Administration now says it has abandoned, have been well known for almost a decade. In fact, virtually all of the FISA intercepts that form the basis of the indictment against Mr. Al-Arian were approved prior to the passage of the USA PATRIOT Act.[5] As the DOJ report makes clear, there were specific procedures in existence throughout the investigation of Mr. Al-Arian which permitted intelligence investigators to “”seek approval to ‘throw information over the wall.'”” The DOJ report says nothing at all about whether intelligence officials ever sought to use such procedures, and, if not, why not.

Still, high-ranking DOJ officials, including Attorney General Ashcroft and Assistant Attorney General Viet Dinh, still insist on claiming (1) that the Al-Arian indictment relies on intelligence information “”previously unavailable”” to prosecutors and (2) that the USA PATRIOT Act made such information available. The DOJ report makes clear that both statements are simply untrue. Such information was available under procedures that existed prior to September 11, 2001, and, to the extent these procedures were cumbersome, the difficulties were almost entirely the result of administrative practice, not statutory barriers.

II. DOJ Cited Fears of Terrorism to Get New Powers It Then Used in Ordinary Criminal Cases

New “”anti-terror”” powers are being used broadly in ordinary federal criminal investigations. When the USA PATRIOT Act was being considered by Congress, critics charged that it had little to do with terrorism, and instead was largely a laundry list of new law enforcement powers that the Department of Justice had long sought for use in ordinary criminal cases, such as drug prosecutions. On the other hand, Attorney General Ashcroft and other DOJ spokespersons strongly disagreed, saying the USA PATRIOT Act was not the wish list of federal prosecutors for general criminal cases and that quick passage was essential to preventing another catastrophic terrorist attack.

The DOJ’s report makes clear that critics’ suspicions were well founded. For example, the response makes clear that DOJ has used controversial “”sneak and peek”” warrants – search warrants that permit searches to be executed without contemporaneous notice to the owner of the property being searched – on 47 separate occasions, and have sought to extend the period of delay for notice 248 times. These warrants were authorized by statute for the first time in section 213 of the USA PATRIOT Act. Despite intense lobbying by an “”unlikely allies”” civil liberties coalition of the right and left that included efforts to limit “”sneak and peek”” powers to terrorism cases, DOJ demanded that the secret warrants be available in all federal criminal investigations. The response makes clear (at p. 9) that “”sneak and peek”” warrants have been used in run-of-the-mill drug cases unrelated to terrorism and in credit card fraud cases.

Likewise, the DOJ report makes clear that its new “”pen register/trap and trace”” powers, which authorize the collection of detailed Internet information without a warrant or wiretap order based on probable cause, have also been used in drug and fraud cases (p. 23). New civil asset forfeiture cases – which do not contain many of the due process requirements of criminal prosecutions – have also been used in garden variety money laundering prosecutions (p. 25).

The DOJ report fails to back up the government’s claim that the USA PATRIOT Act has made us safer from terrorism. The DOJ makes the bold claim “”the Government’s success in preventing another catastrophic attack on the American homeland . . . would have been much more difficult, if not impossibly so, without the USA PATRIOT Act”” (p. 29). Yet one can search in vain throughout the 60-page response to find the evidence to back up that conclusion. In its answer to the one simple question – “”What authorities under the USA PATRIOT Act were used in identifying and dismantling terror networks and were relied upon to prevent terrorist plots?”” – the government lists twenty-two separate sections of the USA PATRIOT Act that it has used (pp. 20-29).[6]

For eighteen of the twenty-two cases, it provides no specific information that responds to the question actually asked, which was not whether the government had used authorities under the USA PATRIOT Act, but whether those authorities were used to prevent terrorism.

With respect to fourteen of the sections of the USA PATRIOT Act described, the government lists no information at all with respect to any crimes (must less terrorism) prosecuted or prevented as a result of the new authority:

• Section 201 (new terrorism predicates for wiretapping);
• Section 203 (sharing of grand jury and other criminal information with intelligence investigators without court approval);
• Section 205 (employment of translators);
• Section 207 (permits FISA surveillance for greater periods without renewed judicial order);
• Section 209 (new voice mail search warrants);
• Section 211 (surveillance of telephone and Internet communications provided by cable companies);
• Section 217 (monitoring of unauthorized use of computer systems);
• Section 218 (weakening of FISA “”primary purpose”” standard);
• Section 220 (expanded search warrants for Internet Service Providers);
• Section 402 (triple immigration agents at the Northern border);
• Section 403 (sharing of criminal information with INS, State Department);
• Section 414 (expedite entry-exit system for use at the border);
• Section 416 (foreign student monitoring); and
• Section 905 (sharing of criminal investigative information with CIA).

For an additional three sections, the government does provide examples of specific criminal cases in which it has used the authorities it describes, but it is clear that the cases are common crimes with no relation to terrorism:

• Section 210 (expanding authoring to obtain records from electronic communications providers). The example cited involved computer hacking.
• Section 212 (expands authority for Internet Service Providers to disclose personal information to law enforcement without customer consent). The example cited involved a bomb threat at a school.
• Section 319 (civil forfeiture). The example involved a confidence scheme.

In one case, it is impossible to tell whether the example really involves terrorism or rather concerns a common crime:

• Section 373 (permitting conviction for running unlicensed money transmittal business without knowing about state licensing requirements). The example involves the prosecution of a Boston man for running an unlicensed money transmittal business allegedly tied to Al Qaeda. However, the defendant’s sentence – one and a half years in prison – casts real doubt on whether the judge regarded the case as involving terrorism, or only garden-variety license violations. In addition, the DOJ report describes the facts as involving a knowing violation of state licensing laws, making it unclear why this amendment was necessary.

The DOJ report provides examples that concern terrorism – which is what the question was about – with respect to only four of the authorities it cites. In none of these cases does the report actually answer the question asked, which is not whether the authorities were used, but whether they were necessary to prevent or prosecute terrorism:

• Section 216 (FISA pen register/trap and trace). The example involves the investigation of the murder of journalist Daniel Pearl. The report does not explain whether agents could have obtained the information they needed if they had been required to show some individual suspicion to obtain such an order.
• Section 219 (nationwide search warrants). The example involves the anthrax investigation. The report does not analyze whether the search warrant could have been obtained by going to the district where the property was to be searched.
• Section 801 (new crime for terrorizing a “”mass transportation vehicle.””) The example used is of the “”shoebomber”” Richard Reid. The report does not explain why this count – which was dismissed – was necessary for Reid’s prosecution, as he was indicted for multiple other serious crimes.
• Section 805 (amending crime of material support for terrorism). The examples used are the six alleged “”sleepers”” in Buffalo, three other individuals charged with providing support for Al Qaeda, and four drug smugglers accused of providing assistance to a Colombian rebel group. The report does not discuss the other charges brought in these cases, or analyze whether the defendants could have been indicted under the pre-USA PATRIOT Act statute which already made it a crime to provide material support to a terrorist organization.

The DOJ’s responses in this area appear to be part of a growing patterns of exaggerating the significance of ordinary criminal or immigration cases by portraying them as terrorism-related. A report from the Transactional Records Access Clearinghouse of Syracuse University has documented this troubling trend.[7]

III. DOJ Has Failed to Answer the American People’s Legitimate Questions

How many library, bookstore, medical, credit or other personal records have been examined without probable cause pursuant to the USA PATRIOT Act? While DOJ has acknowledged contacting libraries at least 50 times (based on its “”informal survey,”” discussed below), it does not state whether it has used the USA PATRIOT Act in doing so and still maintains that the use of its sweeping new records powers under the Act is classified. The records power applies not just to library records, but any records, including medical records, educational records, and other documents in the hands of third parties. In fact, ACLU has learned through the Freedom of Information Act that this power has been used, although not how often. When repeatedly pressed at the May 20 hearing (discussed above) concerning the rationale for the Administration’s position that even the number of times the records power had been used was secret, Assistant Attorney General Viet Dinh simply said, unhelpfully, “”That is the determination of the classification committee.”” Even general, aggregate information such as the number of times certain records – or even records in general – have been sought under these powers, DOJ argues, would somehow provide clues useful to our enemies.

Is the government using its powers to seize records without probable cause to obtain entire databases for “”data-mining”” purposes, or are its requests limited only to discrete records? The controversy over the Pentagon’s “”Total Information Awareness”” program – which would use powerful computer algorithms to sift through mountains of personal data in an attempt to uncover patterns of “”suspicious activity”” – shows that Americans do not want such a privacy-invasive technology to be deployed without a full and fair debate in Congress. However, the records authorities of the USA PATRIOT Act provide no real limit as to the quantity of data that could be seized, raising the question of whether the FBI – which acknowledges using data-mining software – could be using the USA PATRIOT Act to obtain data on a massive scale. Disclosure of the number of orders for business records might not provide enough information to determine whether this is happening, as the seizure of a massive commercial database might be accomplished by a single order certifying the records are “”sought for”” an authorized counter-intelligence or counter-terrorism investigation.

What is DOJ’s definition of “”content”” for purposes of its power to monitor some e-mail and Internet communications without probable cause? Section 216 of the USA PATRIOT Act extends to the digital world (Internet and e-mail) the concept of a “”pen register/trap and trace”” device, which, in the telephone world, captures telephone numbers dialed, but not the content of telephone communications. This technical issue is of enormous importance to Americans’ privacy because the use of these devices does not require any showing of “”probable cause,”” but instead is permitted whenever a government agent certifies the information may be relevant to an investigation. Even if technology exists to minimize the collection of information to exclude content, the statute does not clearly define content to exclude detailed information available in the Internet world that is not available in telephone communications – for example, the subject line of an e-mail or the information in a search string that indicates the precise pages searched on the Internet. In other words, may an investigator, without probable cause, find out only that you have visited the popular Internet search site www.google.com, or can it also find out that you have asked to search for “”Bush”” and “”Halliburton,”” or “”Clinton”” and “”Whitewater””? Inexplicably, the DOJ has still failed to explain whether it believes it has the power to obtain, without probable cause, such detailed information. Instead, it merely states that “”[a]ny questions about what constitutes ‘content’ must be coordinated with Main Justice.”” (attachment D, p. 2).

What are the standards for using foreign intelligence pen registers? While the issues around content and Internet surveillance are identical with respect to ordinary criminal pen registers (added by section 216 of the USA PATRIOT Act) and foreign intelligence pen registers (added by section 214 of the USA PATRIOT Act), the DOJ response makes clear that its standards for criminal pen registers may be entirely different from foreign intelligence pen registers. DOJ does not provide any information about foreign intelligence pen registers. (attachment D, p. 1, n. 1).

How often have foreign intelligence pen registers been used? Again, we have been given no information about how often these foreign intelligence powers to monitor e-mail and the Internet without probable cause have been used. With respect to foreign intelligence pen registers, DOJ takes the position that even disclosing the number of times such orders have been issued would damage the national security.

How does the government ensure its use of these powers are not predicated on protected First Amendment activity? Under the USA PATRIOT Act, the use of the FISA records power (as well as other authorities, including the pen register authority discussed below) to investigate United States persons may not be predicated “”solely”” on the basis of First Amendment-protected activities. However, DOJ is entirely non-responsive when asked how it ensures these limitations are respected — i.e., does it certify to the Foreign Intelligence Surveillance Court that it is not investigating a U.S. person on the basis of First Amendment activities. Instead, it merely parrots the requirements of the statute and states that it will respect those limitations (p. 2, 3).

Why did DOJ change its spying guidelines for domestic investigations where the issue is the conduct of international terrorism investigations? When pressed why the DOJ changed its domestic guidelines when the investigation of international terrorist organizations, such as Al Qaeda, are covered by the separate, classified, guidelines for counter-intelligence and counter-terrorism investigations, DOJ is completely non-responsive. DOJ says only that the changes were necessary because “”foreign terrorists often engage in conduct that violates the criminal laws of the United States”” (p. 37). Of course they do, but investigation of foreign terrorism – which could result in criminal charges – is governed by the guidelines for foreign counter-terrorism and counter-intelligence investigations, not the guidelines for domestic crimes.

Is the FBI asking for membership lists of mosques? If so, why? Is it reassigning agents as a result of its survey of mosques? How many investigations or prosecutions have resulted? DOJ defends its controversial survey of mosques as necessary to enable it to serve a diverse community and as a form of outreach, but simply refuses to answer any of these basic questions (p. 56).

Who has been arrested or detained as a result of the successive sweeps of Arab and Muslim immigrants? What were the results of FBI’s so-called “”voluntary interviews”” project? When were the plans for such operations first considered? What guidance was provided to investigators? The DOJ simply refuses to answer these basic questions at all, stating that the answers are classified (p. 58), even though many of the details of these policies were discussed in a recent General Accounting Office (GAO) report that was critical of the program.[8] It lacks all credibility to say that the answers to these broad and general questions about these controversial policies are classified where the DOJ itself has released substantial information about them to the public already and claimed they are necessary to protect the public from terrorism.

What is the basis for the Department of Justice claim that its arrests and detentions of ordinary Arab and Muslim immigrants, whether or not lawfully present, have anything to do with making America safer from terrorism? While the government consistently cites its success in deporting some Arab and Muslim immigrants as somehow related to its conduct of an anti-terrorism investigation, it still refuses to provide any factual basis for its claims. It has now relied on a new rationale for refusing to answer questions about its detention an