Government Improperly Withholding Surveillance Records, ACLU Charges

June 28, 2007 12:00 am

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Group Files Lawsuit Against CIA and Defense Department to Obtain National Security Letter Records


NEW YORK — The American Civil Liberties Union today filed a Freedom of Information Act lawsuit to force the Department of Defense and the CIA to turn over documents concerning their use of National Security Letters (NSLs) to demand private and sensitive records about people within the United States without court approval.

“There is no question that the excessive secrecy surrounding the government’s use of National Security Letters has led to extensive and serious abuses,” said ACLU attorney Alexa Kolbi-Molinas. “It is imperative that the public know for what purpose and under what authority the Defense Department and the CIA are using these letters to obtain sensitive domestic records.”

In April, the ACLU filed Freedom of Information Act requests with both the Defense Department and the CIA seeking all records pertaining to their use of NSLs to gain access to financial, credit, electronic, communication, or any other personal records of people in the United States. Neither department has released any records in response to the requests.

NSLs are secretly issued by the government to seek a broad array of sensitive records about individuals and entities in the United States without any showing of probable cause or prior judicial approval. They may be used to obtain access to subscriber, billing and transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of the NSLs are forbidden, or “gagged,” from disclosing that they have received the letters.

According to the New York Times, the Defense Department and CIA have been issuing NSLs to demand sensitive personal records without court approval or, in some instances, without any clear statutory authority to do so. The Times reported that that the Defense Department has issued thousands of NSLs over the past five years. Recipients of the letters have reported confusion over the scope of the information requested and whether the letters are compulsory.

The lawsuit comes on the heels of widespread reports of other significant government abuses of the NSL power. A March 2007 report from the Justice Department’s Inspector General (IG) estimated that the FBI issued over 143,000 NSLs between 2003 and 2005, an astronomical increase from previous years. The IG’s report also found numerous examples of improper and illegal uses of NSLs by the FBI. Two weeks ago, a comprehensive internal FBI audit leaked to the Washington Post reportedly revealed that these abuses may have been even more extensive than originally disclosed.

“The possibility that the military and the CIA are playing an expanded — and possibly unauthorized — role in domestic intelligence gathering is of grave public concern,” said Melissa Goodman, staff attorney with the ACLU. “Particularly in light of recent revelations about widespread FBI abuse of the NSL power, it is critical that the public understand how the entire government is using NSLs, and whether the Defense Department’s and the CIA’s use of NSLs as a domestic investigatory tool cross the line.”

In related litigation, the ACLU also continues to challenge the constitutionality of the reauthorized Patriot Act’s NSL gag and secrecy provisions. In that case, the ACLU represents a John Doe NSL recipient who has been under an FBI-imposed gag for three years. On August 15, the ACLU will return to federal court in New York to argue that case, Doe v. Gonzales, before U.S. District Court Judge Victor Marrero.

Attorneys in the case are Kolbi-Molinas, Goodman and Jameel Jaffer of the ACLU and Art Eisenberg, Legal Director of the New York Civil Liberties Union.

A copy of the complaint can be found on line at:

Information about the ACLU’s work in connection with NSLs can be found on line at:

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