New Records Show That FBI Invoked Controversial Surveillance Powers Weeks After Attorney General Declared that Power Had Never Been Used
FBI Forced to Turn Over Documents Under Court Order
FOR IMMEDIATE RELEASE
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
Learn More About the Issues in This Press Release
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
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Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.