Tuesday, October 11, 2005

PATRIOT ACT: ACLU claim of misuse of act for secrecy purposes

MORE FYI for Thursday's class. If sections of the Patriot Act "gag" the
ACLU or others from speaking, with criminal saction, show is that the
same, or different from what was done to Anthony Haswell?

-- bill


Through Gag Orders and Secret Evidence, Government Is Suppressing
Information About Controversial Patriot Act Powers, ACLU Charges


August 19, 2004

ACLU Files Motion Today to Exclude Secret Evidence


NEW YORK - The government is using gag orders and secret evidence to keep
the public in the dark about its use of the Patriot Act to investigate
Americans, the American Civil Liberties Union said today.

In two legal challenges to controversial provisions of the Patriot Act
brought by the ACLU and other groups, the government has filed secret
evidence that it is refusing to disclose to the public and even to the
attorneys in the case.

"Our system of justice does not and should not tolerate the use of secret
evidence in deciding important constitutional questions, which is why this
tactic has been repeatedly rejected by the courts," said ACLU Associate
Legal Director Ann Beeson.

"The government is refusing to tell the public how it is using these
extraordinary new powers, even in the most general terms," Beeson said.
"At the same time, the government is gagging the ACLU and others from
speaking freely about our legal challenges," Beeson said.

Today, in its challenge to Section 215 of the Patriot Act, the ACLU filed
a motion to exclude classified portions of a government affidavit that
were provided only to the court. The government has asked the court to
consider this secret evidence in deciding whether to dismiss the ACLU.s
constitutional challenge to the law.

The lawsuit, filed in Detroit in July 2003, challenges the FBI.s
unprecedented power under Section 215 to access medical, library and other
private records without a subpoena or a warrant based on probable cause.
The judge has not yet ruled on the government.s pending motion to dismiss
the case.

In the second case, filed in New York in April of this year, the ACLU is
challenging the FBI.s authority to use National Security Letters to demand
sensitive customer records from Internet Service Providers and other
businesses without judicial oversight. Here, the government has submitted
a secret affidavit without providing any justification for the secrecy or
any indication of the nature or scope of the evidence.

The ACLU filed the National Security Letter case under seal to avoid the
risk of violating a Patriot Act gag provision. Since filing the case, the
ACLU has repeatedly clashed with the government over its insistence on
suppressing even innocuous, non-sensitive information about the case.

"The government is refusing to tell the public how it is using these
extraordinary new powers, even in the most general terms," Beeson said.
"At the same time, the government is gagging the ACLU and others from
speaking freely about our legal challenges," Beeson said.

Even Congress has not been given complete information about the
government.s use of the Patriot Act, according to ACLU staff attorney
Jameel Jaffer. A 30-page report submitted to Congress last month by
Attorney General Ashcroft on the government.s use of the Patriot Act
omitted key information and avoided any mention of numerous controversial
provisions of the law, including Section 215 and Section 505, the National
Security Letter provision.

"Unfortunately, the government has released virtually no information about
the way that that the Patriot Act is being used, and the meager
information that has been released is incomplete and misleading," Jaffer
said. "'Trust us, we're the government,. is not a sufficient response when
it comes to such a radical expansion of law enforcement powers."

The ACLU is highlighting the unjustified suppression of information about
the Patriot Act in a new web feature. The feature provides examples of
speech that the government suppressed in the National Security Letter case
but that the court later allowed the ACLU to disclose. For example, the
government demanded that the ACLU redact a sentence that described its
anonymous client.s business as "provid[ing] clients with the ability to
access the Internet." The government also insisted that the ACLU black out
a direct quote from a Supreme Court case. The feature is online at

In the National Security Letter challenge, the government will file its
final round of legal papers this Monday, August 23. The court has not yet
scheduled a hearing in the case and it is unclear whether any hearing will
be open to the public.

More information about the NSL case is online at www.aclu.org/nsl

More information about the Section 215 case is online at

In addition to Beeson and Jaffer, Arthur Eisenberg of the New York Civil
Liberties Union is an attorney in the NSL case. Attorneys in the Section
215 case also include Michael Steinberg, Noel Saleh and Kary Moss of the
ACLU of Michigan.

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