June 17, 2004


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: http://www.aclu.org/patriotfoia
A web feature about the constitutional challenge to Section
215 of the Patriot Act is online at:
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13255&c=207