The ACLU has asked Congress to repeal a provision of the Patriot Act granting the FBI expanded powers to demand sensitive personal information without judicial supervision.
The Justice Department's own inspector general said the number of so-called "national security letters" the FBI has issued is significantly higher than previously disclosed. In 2005, the FBI alone issued more than 19,000 of the letters.
The ACLU believes the Justice Department, led by Attorney General Alberto Gonzales, is trying to evade responsibility for the rampant use of letters by blaming the FBI for them. "The Attorney General and the FBI are part of the problem and they are dodging their responsibility," said ACLU/SC Executive Director Ramona Ripston. "Congress must act immediately to exercise true oversight and repeal these dangerous Patriot Act provisions."
Under the Patriot Act, the FBI can secretly demand telephone, e-mail and financial records without court approval. The law has a "gag rule" that forbids a person who receives a letter from telling anyone about the record demand.
The Justice Department report found serious breaches of department regulations and numerous potential violations of the law. It also criticized the FBI for lax managerial controls that invited abuse, and found that agents had claimed "exigent circumstances" where none existed, and that some recipients had provided more information than authorized by law.
The ACLU has successfully challenged the procedures for issuing the letters in two separate lawsuits.
In response to the court rulings, Congress made some minor changes to the law when it reauthorized the Patriot Act in 2005. As the Justice Department report demonstrates, those changes are not enough.
In a September 2004 ruling striking down the draconian gag provision of the NSL power, Federal District Court Judge Victor Marrero said: "As our sunshine laws and judicial doctrine attest, democracy abhors undue secrecy. An unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society. Such a claim is especially inimical to democratic values for reasons borne our by painful experience."
In April, Judge Marrero is expected to hear arguments in the ACLU's challenge to the gag and secrecy provisions of the NSL law as amended by Congress in 2006.