ACLU Calls on Congress to Demand Answers on Expanded Searches; House Action Comes on Heels of Disappointing Court Ruling

May 20, 2003 12:00 am

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WASHINGTON – As a House panel prepares to hear testimony this afternoon on expanded search and seizure powers and other post-9/11 Fourth Amendment concerns, the American Civil Liberties Union today said that Congress must demand up-to-date and accurate information about how the federal government is using its expanded powers.

“”Our elected officials need to reaffirm their oversight responsibilities and demand that the federal government, specifically the Department of Justice, be more forthcoming about how, why and against whom it is using its expanded law enforcement and intelligence gathering powers,”” said Timothy Edgar, an ACLU Legislative Counsel.

Today’s hearing is set for this afternoon in front of the House Judiciary Committee’s Constitution Subcommittee, chaired by Rep. Steve Chabot (R-OH). It is titled “”Anti-Terrorism Investigations and the Fourth Amendment: Where and When Can the Government Go to Prevent Terrorism.””

The hearing comes on the heels of a disappointing decision by a U.S. District Court finding that the Freedom of Information Act does not entitle the public to basic statistical information indicating how broadened surveillance power is being used.

Notably, the judge acknowledged the soundness of the ACLU’s policy argument, saying that it and other public advocacy groups had advanced a “”compelling argument that the disclosure of this information will help promote democratic values and government accountability.”” The judge ultimately found, however, that the ACLU could not overcome the heavy presumption that favors the government in national security cases. Discussions are underway at the ACLU on whether to appeal.

“”The decision issued yesterday confirms that we cannot rely exclusively on the freedom of information laws to restore government accountability,”” said Jameel Jaffer, an ACLU Staff Attorney. “”Particularly in light of multiplying accounts that the Department of Justice is abusing new surveillance powers, more aggressive Congressional oversight is absolutely imperative.””

Prior to today’s decision, the FOIA lawsuit had had some success in getting the Justice Department to disclose information about the use of new surveillance powers. For example, the ACLU was able to obtain documents showing that the government has aggressively used National Security Letters to obtain sensitive records from banks, credit reporting agencies, and Internet service providers. National Security Letters are issued by the Attorney General unilaterally and are not subject to judicial oversight.

The ACLU has, for months now, argued for several fixes to the USA PATRIOT Act, not the least of which would specifically address a significant reduction in the legal standard necessary to obtain so-called “”sneak and peek”” warrants. “”Black bag”” warrants, as they are also known, permit officials to conduct highly intrusive searches without notifying the target of the search for weeks, if at all. “”Are these being used in terrorism cases or in all cases?”” the ACLU’s Edgar said. “”We don’t know.””

Another issue of concern to the ACLU is the expanded records authority in the USA PATRIOT Act, allowing any and all records to be obtained for “”foreign intelligence”” purposes without probable cause. The Department of Justice has not only refused to release basic statistics about how often these powers are being used, it has reacted to increased public concern about sensitive records, such as library and bookstore records, by falsely claiming these new powers apply only to foreign spies or terrorists. This limit is one of the safeguards that the USA PATRIOT Act lifted.

“”They still say that the use of this power is classified,”” Edgar said. “”The public has a right to know how often its reading habits are being monitored.””

Although the Department of Justice has been extremely close-mouthed in discussing many powers, recent disclosures show a marked increase certain types of surveillance, notably what are known as “”pen register”” searches.

Requirements for obtaining pen register surveillance orders are effectively non-existent: not only do police not have to show probable cause, they can get such an order simply by claiming that it is “”relevant”” to an ongoing investigation. Such lax standards were, prior to 9/11, accepted because pen register orders only applied to so-called transactional information about communications (for example, telephone numbers dialed) and not the content of communication (the conversation). The USA PATRIOT Act extended these orders to e-mail and other electronic communications, which, because of the way the Internet works, could allow the government to obtain content.

“”Post-PATRIOT pen register warrants and black bag searches are only a few of the needless infringements on civil liberties,”” Edgar said. “”Both diminish accountability, which is necessary for Americans to make informed judgments about the job done by their federal police. Congress needs to step in and restore the premium placed both on safety and freedom in our counter-terrorism efforts.””

Communities across the country have spoken out in opposition to elements of the PATRIOT Act that undermine their liberty. Last night, Baltimore passed such a resolution, becoming the 108th community to stand up for its civil liberties by passing a resolution affirming that safety need not come at the expense of liberty.

A copy of the court’s decision can be found at:

For more on the USA PATRIOT Act, please visit: /cpredirect/17343

For more information on local resolutions, go to:

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