Documents Show Ashcroft is Bypassing Courts
With New Spy Powers, ACLU Says
YORK - March 24 - Documents obtained by the American Civil Liberties
Union suggest that the Attorney General is aggressively wielding
a disturbing power that - without the approval of a judge - allows
the government to force banks, Internet service providers, telephone
companies, and credit agencies to turn over their customersí records.
oversight, there is simply no assurance that the Attorney General
is using this authority in keeping with democratic principles
and constitutional rights," said Jameel Jaffer, an attorney with
the ACLUís Technology and Liberty Program.
about the governmentís surveillance powers was obtained through
a Freedom of Information Act (FOIA) lawsuit filed jointly with
the Electronic Privacy Information Center and the American Booksellers
Foundation for Free Expression and the Freedom to Read Foundation.
documents obtained through the FOIA lawsuit, the government employs
"National Security Letters" - signed by Attorney General Ashcroft
or a delegate and with no judicial approval - to "compel the production
of a substantial amount of relevant information." The government
can use this power to obtain records about people living in the
United States, including American citizens, without probable cause
that the person has committed any crime. Entities that are forced
to turn over records are prohibited from disclosing to their customers
- or to anyone else - that the FBI has demanded the records.
The ACLU has
always been critical of the letters because they do not require
judicial review. However, said Jaffer, under the Patriot Act,
"the letters have become a far more invasive and nefarious tool."
Before the Patriot Act, Jaffer explained, National Security Letters
could be issued only against people who were reasonably suspected
of espionage. The Patriot Act allows the Attorney General to issue
National Security Letters even against people who are not suspected
of criminal activity or of acting on behalf of a foreign power.
has refused to say how extensively it is using its authority to
issue the letters. But Jaffer said that the length of the blacked-out
lists of National Security Letters suggests that the government
is using this power more extensively than other surveillance powers
under the Patriot Act that require court approval. The ACLU has
created a special web feature with samples of the blacked-out
documents and government memos describing the new powers, online
obtained documents confirm that:
The FBI is
conducting wiretaps and secret searches in criminal investigations
without complying with the usual probable cause requirements;
has begun to use an extraordinarily broad surveillance provision
that could be used to force libraries and bookstores to report
on their patronsí and customersí reading habits;
The FBI is
aggressively using pen registers and trap-and-trace devices that
allow them to track phone calls and emails;
plans to use its new surveillance powers not only against suspected
terrorists but also against ordinary Americans and permanent residents.
The ACLU explained
that it has challenged the governmentís refusal to release a number
of other relevant documents, which consist principally of aggregate
statistical information indicating the extent to which the government
has relied on new surveillance powers. On Friday, the ACLU asked
a federal judge to order the government to release these documents,
saying that the information is essential to the publicís ability
to evaluate the new surveillance provisions and that its release
would not compromise national security.
In a related
case concerning expanded government spy powers, the Supreme Court
today rejected a request by the ACLU and Arab-American groups
to review an extraordinary decision by a secret appeals court
that broadly expanded the governmentís powers to spy on U.S. citizens.
For more information on that case, see http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11840&c=206
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 of the ACLU of the
National Capital Area.
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