New Records Show That FBI Invoked Controversial Surveillance Powers Weeks After Attorney General Declared that Power Had Never Been Used

June 17, 2004 12:00 am

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FBI Forced to Turn Over Documents Under Court Order


NEW YORK – Federal Bureau of Investigation documents turned over to the American Civil Liberties Union and other civil liberties organizations under court order reveal that the FBI invoked a controversial provision of the Patriot Act only weeks after Attorney General John Ashcroft publicly declared that this power had never been used.

Among the records released is an FBI memorandum, dated October 15, 2003, indicating that the FBI submitted an application for an order under Section 215 of the Patriot Act less than a month after the Attorney General made his announcement. The records disclosed to the ACLU do not indicate how many times the FBI has invoked Section 215 since October 2003.

“From the latest documents we’ve received from the government, it appears that Attorney General Ashcroft released records when it suited his political purposes and then attempted to withhold them when it didn’t,” said Jameel Jaffer, an ACLU Staff Attorney. “The records we’ve obtained suggest once again that the government’s secrecy decisions are guided not by national security concerns but by political ones.”

The records about the government’s use of the Patriot Act were obtained through a Freedom of Information Act (FOIA) request filed in October 2003 on behalf of the ACLU, the Electronic Privacy Information Center, the American Booksellers Foundation for Free Expression and the Freedom to Read Foundation.

Even after the requesters filed legal action in December 2003, the FBI attempted to stonewall the request for information, stating that the records could not be produced before June 2005. The United States District Court for the District of Columbia ultimately overturned the FBI’s decision to withhold the documents until 2005 and ordered the FBI to release the documents over a period of six weeks. This week’s release was the first of two expected; a further release is expected in early July.

“A veil of secrecy has shrouded the Patriot Act for two and a half years. The fragments of information that we have managed to pry out of the Justice Department raise serious questions and provide few answers,” said David Sobel, General Counsel for the Electronic Privacy Information Center. “It is time for an open public debate on this controversial law.”

Among the other documents released by the FBI is an e-mail that acknowledges that Section 215 can be used to obtain physical objects, in addition to records. It states that the FBI could use Section 215 to obtain a person’s apartment key. The Attorney General has previously acknowledged that Section 215 can be used to obtain computer files and even genetic information.

Another document released by the FBI is an internal FBI memo, dated October 29, 2003, acknowledging that Section 215 of the Patriot Act can be used to obtain information about innocent people. The memo contradicts the government’s assertion, made repeatedly on the public record, that Section 215 can be used only against suspected terrorists and spies.

The ACLU also sent one of the documents obtained through the FOIA request to the United States District Court for the Eastern District of Michigan, which is currently considering a constitutional challenge to Section 215 brought by the ACLU on behalf of a coalition of civil rights, religious, and immigration organizations. In October 2003, the government filed papers asking the Court to dismiss the challenge as “unripe” because the FBI had never applied for a Section 215 order.

“It is remarkable that the government never made any effort to inform the plaintiffs or even the Court that it has begun using Section 215,” said Ann Beeson, Associate Legal Director of the ACLU.

Attorneys in the FOIA lawsuit are Jaffer and Ann Beeson of the ACLU; David Sobel, General Counsel for the Electronic Privacy Information Center; and Arthur B. Spitzer, Legal Director for the ACLU of the National Capital Area.

A web feature about the FOIA, including documents obtained from the FBI, is online at: /patriotfoia

A web feature about the constitutional challenge to Section 215 of the Patriot Act is online at: /node/23347

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