ACLU Obtains Rules of Secret Wiretap Court But Says Much of Government's Spy Power Remains Shrouded in Unnecessary Secrecy

August 25, 2004 12:00 am

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NEW YORK – The American Civil Liberties Union today released a copy of the procedural rules of the Foreign Intelligence Surveillance Court, the specially constituted intelligence court that oversees FBI surveillance in foreign intelligence and terrorism investigations. The ACLU obtained the rules as part of a final settlement of a lawsuit that sought details on how the government is using expansive surveillance powers granted by the Patriot Act.

“We know very little about the kinds of surveillance the FBI engages in under the auspices of the FISA court,” said Jameel Jaffer, an ACLU staff attorney. “Through litigation under the Freedom of Information Act, we’ve been able to shed a little light on the system.”

While the FISA court has existed since 1978, its importance has grown immensely over the last quarter century. Last year, according to a government report, the FISA court issued more than 1,700 surveillance orders, approximately 10 times as many as the court issued in the year it was created and more than all other federal and state courts combined. A chart with the FISA wiretap numbers is online at

“Particularly in light of the vast amount of surveillance that the FBI now conducts on the authority of the FISA court, it’s not acceptable that this court remain a black box,” Jaffer added.

The FISA court’s current importance is due in part to the Patriot Act, which expanded the FBI’s authority to monitor the activities and communications of innocent people, including American citizens and permanent residents. Among other things, the Patriot Act for the first time authorized the FBI to conduct surveillance in criminal investigations without meeting the usual Fourth Amendment probable cause requirement.

The ACLU obtained the court rules and other documents through a FOIA lawsuit filed in October 2002. The ACLU and the Electronic Privacy Information Center filed the lawsuit as attorneys for their organizations and for the American Booksellers Foundation for Free Expression and the Freedom to Read Foundation, citing concerns that the new surveillance laws threaten the First Amendment-protected activities of librarians, library patrons, booksellers and their customers, and investigative journalists.

Since filing the FOIA lawsuit, the ACLU and its allies have obtained hundreds of pages of documents that provide a glimpse into the workings of the Patriot Act, including:

  • A memorandum indicating that the FBI invoked the Section 215 power just weeks after Attorney General Ashcroft publicly declared that this power had never been used;
  • Internal FBI guidelines advising agents that they may use the Patriot Act to obtain information pertaining to people who are not connected to terrorism, espionage, or criminal activity of any kind; and
  • FBI memoranda concerning Section 505 of the Patriot Act – the National Security Letter provision – the constitutionality of which is at issue in a challenge that the ACLU filed in April.

Links to these and other Patriot FOIA documents are online at /patriotfoia

While this hard-won information has assisted the ACLU in challenging unconstitutional portions of the Patriot Act and educating the public about the law, many questions remain unanswered. For example, the Justice Department has refused to disclose basic statistical information indicating how many times certain controversial surveillance provisions have been used.

The ACLU is actively opposing the expansion of FISA through legislative advocacy as well as litigation, including support for the bipartisan Domestic Surveillance Oversight Act of 2003, S. 436, which would require public accounting of the number of Americans subjected to surveillance under FISA and the number of times FISA information is used for law enforcement purposes.

More information about the ACLU’s legal challenges to the Patriot Act is online at

The ACLU is also challenging the government’s use of gag orders and secret evidence to keep the public in the dark about its use of the Patriot Act to investigate Americans. For more information, go to /node/15761

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

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