Justice Department Continues Offensive on National Security Letters, ACLU Says Government Statements Misleading and Inaccurate

December 2, 2005 12:00 am

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WASHINGTON – The American Civil Liberties Union today rebuked efforts by the Justice Department to downplay the increased use of National Security Letters (NSLs), which give law enforcement access to sensitive records without judicial approval. The reach of NSLs was broadened by the Patriot Act and their use has increased a hundredfold since 2001.

“The Justice Department’s exaggerated assaults on reports that are embarrassing to the administration are regrettably reminiscent of the Nixon era,” said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. “It is unfortunate that our nation’s Justice Department continues to undermine its credibility by attacking investigative reporting that has exposed serious problems with the government’s use of secret search powers. These powers allow them to obtain, without judicial approval, the sensitive records of innocent Americans with no connection to a suspected terrorist.”

In a letter sent to the House and Senate Judiciary Committee last week, the Justice Department offered a ten-page response to a recent front page Washington Post article on the increased use of NSLs. The Justice Department claimed that the report was inaccurate. However, the ACLU noted that the administration’s purported rebuttal only underscores some of the main concerns Americans have about the secret search powers authorized under NSLs, and noted that DOJ’s letter itself is very misleading.

For example, despite Justice Department claims, the standard for NSLs — relevance to an investigation, which is determined solely by the FBI without any judicial approval– permits federal agents to gather the records of ordinary, law-abiding Americans. In its own letter, the Justice Department concedes that ‘some people whose records are produced in response to an NSL may not be terrorists or spies or associated with terrorists or spies.’

Also, the Justice Department claims in its letter that those served with an NSL can consult with an attorney, but the NSLs themselves, as well as the statute, state recipients are barred from disclosing the letters to anyone. While the ACLU is representing two separate clients challenging the NSL authority, their right to counsel is not specified under the law. Congress is currently working to reauthorize the Patriot Act, and one proposal would clarify that NSL recipients must be told they have a right to consult with their lawyers.

The ACLU noted that one federal court in Connecticut has already found the underlying NSL authority to be too broad and unconstitutional. Another court has found the permanent gag order that accompanies these demands to be unconstitutional and yet the Department asserts that courts have found there is no First Amendment free speech right in these investigations, ignoring the most recent judicial opinion in this area.

“Congress is in the process of reauthorizing the Patriot Act, and it should take this opportunity to place better checks and balances on NSLs and other broad powers,” Graves added. “NSL demands can be made without any contemporaneous and independent approval. Also, the secrecy surrounding their use prevents a full and open public debate. Lawmakers have not yet corrected these inherently abusive powers in the draft Patriot reauthorization bill and they must do so.”

To read the ACLU’s response to the Justice Department rebuttal, go to:

To read the Justice Department’s rebuttal sent to the House and Senate Judiciary Committees, go to:

For more on the ACLU’s concerns with the NSL authority and its legal challenges to that power, go to:

For more on the ACLU’s concerns with the Patriot Act, go to:

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