Report Reveals Wider Reach of Financial Spying

In today’s New York Times, Eric Lichtblau and Mark Mazzetti report that the CIA and Pentagon have been using "national security letters" to obtain sensitive financial information about Americans and others living in the United States. The report raises serious questions about the extent to which the Pentagon and CIA have become involved in domestic intelligence gathering.

As the CIA and Pentagon have apparently been issuing national security letters for at least five years, it seems reasonable to ask why we’re learning of it only now. One reason may be that national security letters often come with “gag” orders that prohibit recipients from disclosing even the mere fact that the government has demanded information from them. The ACLU challenged such gag orders in two cases – one involving library records and another involving Internet records – and in both cases the gag orders were ruled unconstitutional. Congress amended the relevant statutes early in 2006, but unfortunately it did not fix the gag provisions. Our client in the Internet record case has now been under a gag order for more than two years. And if the government has its way, this John Doe client – the government won’t permit us to disclose the client’s name – will be under a gag order for the indefinite future.

Our John Doe client has filed a legal challenge to the amendments made by Congress in 2006. (Our principal legal brief in Doe v. Gonzales is available online here; and the government’s brief is here.) We expect the district court to hear oral arguments in the Spring.

It is not clear from today’s Times article whether the CIA and Pentagon have been imposing gag orders on organizations served with national security letters. But the article underscores once again how little we know about the government’s surveillance activities. Although executive agencies issue thousands of NSLs every year, the public knows virtually nothing about who those letters were served on, what information the letters sought, or why.

All of this surveillance takes place in secret, with little if any oversight by Congress, the courts, or the public. This situation is an invitation to abuse, as history has shown.

Jameel Jaffer is Deputy Director of the ACLU’s National Security Program and lead counsel in Doe v. Gonzales.