seeking truth from justice - american civil liberties union— viet dinh, assistant attorney...

Seeking TruthFrom Justice

www.aclu.org

Volume One

PATRIOT Propaganda:

The Justice Department's Campaign to MisleadThe Public About the USA PATRIOT Act

July 2003

THE AMERICAN CIVIL LIBERTIES UNION is the nation’spremier guardian of liberty, working daily in courts, legislaturesand communities to defend and preserve the individual rightsand freedoms guaranteed by the Constitution and the laws of theUnited States.

AMERICAN CIVIL LIBERTIES UNIONOFFICERS AND DIRECTORSNadine Strossen, PresidentAnthony Romero, Executive DirectorKenneth B. Clark, Chair,

Executive Advisory CouncilRichard Zacks, Treasurer

National Office125 Broad Street, 18th Fl.New York, NY 10004(212) 549-2500www.aclu.org

Washington Legislative Office1333 H St., NW, 10th Fl.Washington, DC 20005(202) 544-1681

Published July 2003

PATRIOT Propaganda:The Justice Department’s Campaign to MisleadThe Public About the USA PATRIOT Act

Seeking TruthFrom Justice

Seeking Truth From Justice

In April of this year, Maine’s Bangor Daily Newsentered the national spotlight when it reported on asmall-town librarian’s drive to keep the JusticeDepartment from obtaining the borrowing recordsof her patrons under the increasingly controversialUSA PATRIOT Act.

It was a regional human interest story, yet itspurred a high-level spokesman for AttorneyGeneral John Ashcroft to call the Bangor paperand claim that a grassroots backlash against partsof the PATRIOT Act amounted to nothing morethan a “propaganda campaign,” which had consis-tently got the facts “wrong.”

Interestingly, though, when the spokesman, MarkCorallo, berated the paper’s editors, he misrepre-sented the scope and impact of the relevant provi-sion in the PATRIOT Act, prompting the editorialboard to write a piece complaining that Corallo’scharacterization “completely overstates theDepartment’s limitations.”

The editorial went on to support the librarian’sposition.

If this was just an isolated incident, it could easilybe chalked up to human error or an understandablelapse by a spokesperson at the Justice Department.Unfortunately, the same pattern of behavior –where the Justice Department’s critics areanswered not with substantive counter arguments,but with often-inaccurate dismissals – is evident innumerous instances, going back almost 20 months.

The following report, titled “Seeking Truth FromJustice,” is the first volume in a series of ACLUspecial reports that will catalogue and detail theJustice Department’s seeming inability to get itsfacts straight. This report is part of a series ofACLU special publications examining governmentpolicies since September 11. Each of the reports –The Dangers of Domestic Spying By Federal LawEnforcement (January 2002), Insatiable Appetite(April 2002), Civil Liberties After 9/11 (September2002), Bigger Monster, Weaker Chains (January

2003), Freedom Under Fire: Dissent in Post-9/11America (May 2003) and Independence Day 2003:Main Street America Fights the Government’sInsatiable Appetite for New Powers (July 2003) –is available on our website athttp://www.aclu.org/safeandfree.

As you will see, the errors documented in this reportgo beyond mere legal hair splitting; rather, they dealwith core constitutional values like due process orFourth Amendment protections against unreasonablesearch and seizure. They also raise serious questionsabout whether our leaders in Washington are inten-tionally misrepresenting the facts of a debate todeflect public or political criticism.

Take, for instance, the U.S. Attorney for Alaska’stestimony in front of a state Senate Committee: “Ithink, for instance, there is concern that under thePATRIOT Act, federal agents are now able toreview library records and books checked out byU.S. citizens,” he said. “If you read the Act, that’sabsolutely not true…. It can’t be for U.S. citizens.”

In fact, the U.S. Attorney was wrong. Section 215of the USA PATRIOT Act – reproduced in the firstsection of this report – makes it clear that “U.S.persons,” a term referring to citizens and certaintypes of non-citizens alike, can have their recordsseized.

That is but one example of the misleading state-ments that Justice Department officials and sup-porters of the USA PATRIOT Act have made inrecent months. Our report details others and weplan future reports looking at other ways the gov-ernment is misleading the American public.

Is the Justice Department telling the truth? Youdecide.

LAURA W. MURPHYDIRECTOR, ACLU WASHINGTONLEGISLATIVE OFFICE

July 9, 2003

Foreword

In recent months, citizen concern about theUSA PATRIOT Act has continued to climbto new highs. More than 130 communities

across the country – and state legislatures inAlaska, Hawaii and Vermont – have passedresolutions opposing provisions of thePATRIOT Act and other government actionsthat compromise civil liberties. And librarianshave begun taking steps to warn patronsabout and protect them from the Act’s dan-gerously overbroad powers.

Unfortunately, the Department of Justiceunder Attorney General John Ashcroft hasresponded to this movement by trying to mis-lead the American people about the Act’snew powers. Department spokespersonshave consistently made statements to themedia and local officials that are either half-truths or are plainly and demonstrably false –and which are recognized as false by theJustice Department in its own documents.

Primarily at issue is Section 215 of thePATRIOT Act, the so-called “businessrecords” or “tangible things” provision.Section 215 allows the government to obtain– without an ordinary criminal subpoena orsearch warrant and without probable cause –an order from a court giving them records onclients or customers from libraries, book-stores, doctors, universities, Internet serviceproviders and other public entities and pri-vate sector businesses. The Act also imposesa gag order prohibiting an organizationforced to turn over records from disclosingthe search to their clients, customers or any-one else. The result is vastly expanded gov-

ernment power to rifle through individuals’finances, medical histories, Internet usage,bookstore purchases, library usage, schoolrecords, travel patterns or through records ofany other activity.

The debate over the PATRIOT Act comes at atime when the Justice Department is not onlypushing Congress to remove “sunset” or expi-ration provisions that apply to some portionsof the Act, but is also planning to askCongress for passage of new legislation –dubbed “PATRIOT II” – that would give fed-eral law enforcement authorities even moreexpansive powers. In testimony before theHouse Judiciary Committee on June 5,Attorney General Ashcroft testified that thenew powers would include expansions of theoffense of “material support” for terrorism,which under overbroad definitions of terror-ism in the original PATRIOT Act could beapplied to political protesters, and an expan-sion of presumptive, pre-trial detention – evenafter the Department’s own Inspector Generalfound widespread mistreatment of detaineeswrongly classified as terror suspects.

It is troubling that in its eagerness to preparea foundation for new surveillance and otherpowers, the Justice Department has resortedto spreading falsehoods and half-truths aboutthe powers it already has.

The following report lays out a series of"falsehoods" and "half-truths" that JusticeDepartment officials have consistently madein the media as well as in letters to lawmak-ers and provides the facts to counter each.

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PATRIOT Propaganda:The Justice Department’s Campaign to Mislead

The Public About the USA Patriot Act


FALSEHOOD: The PATRIOT Act doesnot apply to Americans.

What the government has been saying:

“This is limited only to foreign intel-ligence,” said Mark Corallo, aspokesman with the Department ofJustice. “U.S. citizens cannot beinvestigated under this act.”

— Florida TodaySept. 23, 2002

Mark Corallo, Justice Departmentspokesman, said Wednesday that crit-ics of the USA Patriot Act were“completely wrong” and denied thatthe act targeted Americans. ...

“I don’t know why they are mislead-ing the public, but they are,” he saidof the act’s critics Thursday. “The factis the FBI can’t get your records.”

— Bangor [ME] Daily NewsApril 4, 2003

“And I have prepared ... this handychart that takes the actual text ofsection 215 and explains therequirement for court authorization,the requirement that it not – it is notdirected at US Persons, the require-ment that it cannot be directed sole-ly at First Amendment activities. ...”

“The public has I think been misled,and this is the myth versus the realityof section 215.”

— Viet Dinh, Assistant AttorneyGeneral, primary author of the PATRI-OT Act, speaking at the National PressClub, Washington D.C., April 24, 20031

“I think, for instance, there is con-cern that under the PATRIOT Act,federal agents are now able to reviewlibrary records and books checkedout by U.S. citizens. If you read theAct, that’s absolutely not true…. Itcan’t be for U.S. citizens.”

— Testimony of Timothy Burgess,U.S. Attorney for Alaska, before the

Alaska Senate State AffairsCommittee on May 13, 2003

TRUTH: Section 215 of the PATRIOTAct can be used against Americancitizens.

Claims that Section 215 of the PATRIOTAct cannot be used against American citi-zens are simply wrong. According to thetext of the Foreign IntelligenceSurveillance Act as it was amended bySection 215:

(a)(1) The Director of the FederalBureau of Investigation or adesignee of the Director (whoserank shall be no lower thanAssistant Special Agent in Charge)may make an application for anorder requiring the production ofany tangible things (includingbooks, records, papers, documents,and other items) for an investigationto protect against international ter-rorism or clandestine intelligenceactivities, provided that such inves-tigation of a United States person isnot conducted solely upon the basisof activities protected by the FirstAmendment to the Constitution.

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1 Video of Dinh’s remarks is available online at www.c-span.org. “Viet Dinh & Marc Rotenberg Debate Patriot Act,” April 24, 2003.

Nowhere does this statute indicate thatUnited States citizens cannot be targeted.In fact, the statute makes it clear that an“investigation of a United States person”can be conducted, so long as it is not basedsolely on activity protected by the FirstAmendment. (Of course, even this limitapparently applies only where the investi-gation is of a United States person, notwhere the investigation is of a foreignnational but the records or other tangiblethings that the government seeks are ofUnited States persons). The statute defines“United States persons” to include both cit-izens and permanent residents. (See 50U.S.C. § 1801(i).)

FALSEHOOD: Under the PATRIOT Act,the FBI cannot obtain a person’srecords unless it has probable cause.


“I really don’t understand what theconcerns are with the act,” [LaRae]Quy [spokeswoman for the SanFrancisco FBI office] said. “What itdid was primarily streamline exist-ing laws on the books. I know somepeople feel their privacy rights arebeing violated, but I think there’ssome hysteria out there. . . somemisunderstanding.

“We still have to show probablecause for any actions we take,”she said.

— San Francisco ChronicleApril 13, 2003

The Justice Department spokesman,Mark Corallo, says the assertions

about the Act are completely wrongbecause, for the FBI to check on acitizen’s reading habits, it must get asearch warrant. And to get a war-rant, it must convince a judge “thereis probable cause that the personyou are seeking the information foris a terrorist or a foreign spy.”

— Bangor [ME] Daily NewsApril 9, 2003

U.S. Department of Justicespokesman Mark C. Corallo said theFBI must present credible evidencein order to secure a warrant from theso-called spy court, which meets insecret.

“The standard of proof before thecourt is the same as it’s alwaysbeen,” Corallo said. “It’s not beenlessened.”

— Springfield [MA] Union-NewsJanuary 12, 2003

TRUTH: Section 215 of the PATRIOTAct allows the government toobtain materials like libraryrecords without probable cause.

Under the PATRIOT Act, the FBI canobtain records – including library circula-tion records – merely by specifying to acourt that the records are “sought for” anongoing investigation. That standard(sometimes called a “relevance” standard)is much lower than the standard requiredby the Fourth Amendment, which ordinar-ily prohibits the government from con-ducting intrusive searches unless it hasprobable cause to believe that the target of

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the investigation is engaged in criminalactivity.

Although the Justice Department is assur-ing the public that it remains constrainedby the standard of probable cause and thatthe standard “is the same as it’s alwaysbeen,” the government has been telling adifferent story to its own attorneys. Forexample, an October 26, 2001 memo to“All Divisions” from the FBI’s Office ofGeneral Counsel (and approved by FBIDirector Robert S. Mueller III) included asection on “Changes in FISA BusinessRecords Authority”:

The field may continue to requestbusiness records orders throughFBIHQ in the established manner.However, such requests may nowseek production of any relevantinformation, and need only con-tain information establishing suchrelevance.

Similarly, in a December 2002 letter toCongress responding to questions posed bythe Senate Judiciary Committee, DeputyAttorney General Larry D. Thompsonwrote:

Under the old language, the FISACourt would issue an order com-pelling the production of certaindefined categories of businessrecords upon a showing of relevanceand “specific and articuable facts”giving reason to believe that the per-son to whom the records related wasan agent of a foreign power. TheUSA PATRIOT Act changed thestandard to simple relevance.

Finally, at a hearing before the HouseJudiciary Committee on June 5, 2003,Attorney General Ashcroft conceded thatthe PATRIOT Act changed the FISA busi-ness records standard, saying the govern-ment “used to have [to allege] a reason tobelieve that the target is an agent of aforeign power” – a standard he agreedwas “lower than probable cause.” Underthe PATRIOT Act, he acknowledged, thestandard has changed to allow the gov-ernment may obtain all “relevant, tangi-ble items” without such a showing [seebelow].

Ashcroft’s testimony and these internalmemoranda get the law exactly right.They acknowledge, as they must, thatthe FBI can now obtain sensitive busi-ness records merely by telling a courtthat the records are sought for an ongo-ing investigation; that is, the FBI canobtain the records even if they have noreason at all to believe that the person towhom the records pertain is a criminal orforeign spy. The Department’s con-tention that Section 215 can’t be usedwithout probable cause misleads thepublic and ignores the government’s ownlegal analysis.

HALF TRUTH: The governmentmust “convince a judge” to obtainrecords under Section 215.

The Justice Department’s repeated asser-tion that the authorities must “convince ajudge” to win permission for a search alsooverstates the law’s protections. Section215 states:

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(c)(1) Upon an application madepursuant to this section, the judgeshall enter an ex parte order asrequested, or as modified, approvingthe release of records if the judgefinds that the application meets therequirements of this section.

This language suggests that the governmentmust only certify to a judge – with no needfor evidence or proof – that such a searchmeets the statute’s broad criteria: “upon anapplication” the judge “shall enter” a surveil-lance order. Although the statute is not clearand has not yet been tested in court, itappears that the judge may not even have theauthority to reject an application, unless theapplication fails to meet “the requirements ofthis section.” What are those requirements?

FULL TRUTH: Judicial oversight isminimal.

As we have seen, the requirements are min-imal. The FBI can obtain sensitive recordsmerely by specifying that the records are“sought for” an on-going investigation. ForJustice Department spokespersons to stressthe need to “convince a judge” does not dojustice to the true weakness of judicialoversight in this law.

FALSEHOOD: Section 215 appliesonly to terrorists and spies.


Justice Department spokesmanMark Corallo called [librarians’measures against the PATRIOT Act]“absurd.” The legislation “doesn’tapply to the average American,” he

said. “It’s only for people who arespying or members of a terroristorganization.”

— Journal News [NY]April 13, 2003

Before demanding records from alibrary or bookstore under thePatriot Act, he [Corallo] said, “onehas to convince a judge that the per-son for whom you’re seeking a war-rant is a spy or a member of a ter-rorist organization.”

— San Francisco ChronicleMarch 10, 2003

Corallo pointed out that the law onlyapplies to agents of a foreign power ora member of a terrorist organization.

— Associated PressMarch 6, 2003

I think there are a lot of misconcep-tions being offered about what thePATRIOT Act does or doesn’t do. …Ithas to be in regards to an internationalterrorism investigation after a courtapproves us seeking those records.

— Testimony of Timothy Burgess,U.S. Attorney for Alaska before the

Alaska Senate State AffairsCommittee, May 13, 2003

TRUTH: Section 215 can be appliedto anyone.

Once again, the spokesperson’s statementsare flat wrong. While some provisions ofFISA do require a showing that a target is

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an “agent of a foreign power,” there is nosuch requirement in Section 215.

All the government needs to do to conducta search under Section 215 is “specify”that the records are “sought for” an ongo-ing terrorism or foreign intelligence inves-tigation. The government need not showthat the target of the Section 215 order isengaged in terrorism or criminal activity ofany kind.

Attorney General Ashcroft acknowledgedas much in testimony before the HouseJudiciary Committee on June 5, 2003,under questioning by Rep. Tammy Baldwin(D-WI):

BALDWIN: Prior to the enactmentof the USA PATRIOT Act, a FISAorder for business records relatedonly to common carriers, accommo-dations, storage facilities and vehi-cle rentals. Is that correct?

ASHCROFT: Yes, it is.

BALDWIN: And what was the evi-dentiary standard for obtaining thatcourt order?

ASHCROFT: I don’t think the evi-dentiary standard has changed. . . .[crosstalk] OK, maybe it has. Itused to have [to show] a reason tobelieve that the target is an agent ofa foreign power [emphasis added]...

***

BALDWIN: OK. Now, under section215 of the USA PATRIOT Act, now

the government can obtain any rele-vant, tangible items. Is that correct?

ASHCROFT: I think they areauthorized to ask for relevant, tangi-ble items.

BALDWIN: And so that wouldinclude things like book purchaserecords?

ASHCROFT: ... [I]n the narrowarena in which they are authorizedto ask, yes.

BALDWIN: A library book or com-puter records?

ASHCROFT: I think it couldinclude a library book or computerrecords.

***

BALDWIN: Education records?

ASHCROFT: I think there are someeducation records that would be sus-ceptible to demand under the courtsupervision of FISA, yes.

BALDWIN: Genetic information?

***

ASHCROFT: . . . I think [we] prob-ably could.

BALDWIN: Under the PATRIOTAct, what is the evidentiary standardfor the FISA court order to obtainthese sorts of records?

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ASHCROFT: ... [I]f the judge findsthat the investigation is for these[counter-intelligence or counter-ter-rorism] purposes, he orders theFISA. [emphasis supplied] ...

Exactly right. Before the USA PATRIOTAct, government agents could get some busi-ness records under FISA if they had “reasonto believe” the person to whom the recordsrelated was an agent of a foreign power;now, as the Attorney General makes clear,they can get any record or other “tangiblething” that is allegedly relevant to an investi-gation regardless of whether the informationpertains to an agent of a foreign power.

The implications of Section 215’s weak evi-dentiary standard are frightening. The FBI cannow conduct investigations using this powereven when it has no particular individual inmind. For example, the FBI could demand therecords of every person who has checked out abook on bridges based on no more than itsinvestigation of a vague, unsubstantiated tip.The Department’s suggestions that only spiesor terrorists need worry about the PATRIOTAct couldn’t be farther from the truth.

FALSEHOOD: The American peoplecan trust the authorities not toabuse their powers.


“We don’t have any interest in look-ing at the book preferences ofAmericans. We don’t care, and itwould be an incredible waste of ourtime,” he [Corallo] said.

— Chicago TribuneApril 4, 2003

The Justice Department “goes togreat lengths to protect the privacy ofevery American unless you happen tobe a foreign spy or member of a ter-rorism organization,” said spokesmanMark Corallo. “The averageAmerican has nothing to fear.”

— Newark Star-LedgerApril 7, 2003

“We’re not going after the averageAmerican,” said Mark Corallo, aJustice Department spokesman.“We’re only going after the badguys. We respect the right to priva-cy. If you’re not a terrorist or a spy,you have nothing to worry about.”

— Washington PostApril 10, 2003

TRUTH: Democratic societies arebased on checks and balances, noton blind faith in the good intentionsof government officials.

With all due respect to the JusticeDepartment, it is not enough for the govern-ment to assure us that they “go to greatlengths to protect” privacy, “don’t have anyinterest” in spying on innocent people, andare “not going after” the average American.The wisdom of the Founding Fathers, the his-torical record of abuses by the FBI, and com-mon sense all point to the same conclusion:we can’t rely on the FBI or any other federallaw enforcement agency to police itself.

In June, for example, the JusticeDepartment’s own internal oversight unitreleased a report highly critical of what it

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found to be the wholesale and long-termpreventive detention of immigrants sweptup in the months following 9/11. Accordingto the report issued by the JusticeDepartment’s Inspector General, manyimmigrants who had no connection to theterrorist attacks of September 11 languishedin federal lock-up for months at a timeunder an official “no bond policy” thateffectively prohibited their release. The INScomplained that the FBI had given them noevidence to justify their continued deten-tion, yet some immigrants still spent up toeight months waiting for release.

Conclusion: A pattern of deceit

It is time for the Department of Justice tostop misleading the American people. Thepublic cannot make informed decisionsabout the future of the police powers con-tained in the PATRIOT Act – whether to letthem expire, renew them, or expand themeven more with PATRIOT Act II – if thegovernment is not truthful about the extentof its current powers.

And the falsehoods are not limited to thePATRIOT Act. In a letter to the City Clerkof Ithaca, the FBI’s Keith A. Devincentis,Special Agent in Charge of the Bureau’sAlbany office, misstates the FBI’s powersunder the Attorney General guidelines ondomestic surveillance. “Contrary to populartelevision and theatrical portrayals, the FBIinitiates cases predicted on facts, not suspi-cions or guesswork. ‘Fishing expeditions’are clearly proscribed by FBI policy,Attorney General Guidelines, and otherFederal statutes and regulations,”Devincentis wrote.

In fact, in the aftermath of the passage ofthe USA PATRIOT Act, on May 30, 2002,Attorney General John Ashcroft announcedthat he had rewritten the guidelines thatgovern FBI surveillance. The Ashcroftguidelines sever the tie between the start ofan investigative activities and evidence of acrime. Ashcroft’s guidelines give the FBI agreen light to send undercover agents orinformants to spy on worship services,political demonstrations and other publicgatherings and in the Internet chat roomswithout even the slightest evidence thatwrongdoing is afoot. Contrary to whatDevincentis wrote, the FBI is now verymuch empowered to conduct investigative“fishing expeditions” on First Amendmentprotected activities even though there is noindication of criminal activity.

At this moment, the Justice Department hasclear political incentives to soft-pedal thenature of the PATRIOT Act. But we cancount on the fact that government investi-gators and prosecutors, when they appearbefore judges, will be making much bolderclaims about what the Act lets them do.

Some Americans might have a hard timebelieving that a Justice Departmentspokesperson could be inaccurate aboutbasic matters of law with such flagrancy.The ACLU has certainly found that fromtime to time it is possible to make occa-sional errors about matters of law, or to bemisunderstood by a reporter when dis-cussing the law. In this case, however, weare witnessing a pattern of inaccuracyspread out over a long period of time, overa wide variety of news outlets, by variousstaff members, on a central issue in aprominent national debate.

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The Department’s inaccuracies have to donot with subtle, debatable points of legalinterpretation, but clear matters of law thatare spelled out in black and white in thetext of the PATRIOT Act.

There is no excuse for the JusticeDepartment to get the PATRIOT Actwrong; the Department was behind thelegislation from the beginning. TheJustice Department drafted the Act (mostof the Act’s surveillance provisions werepart of a longstanding wish list that had

previously been sought by the JusticeDepartment but rejected by Congress), andthe Department was instrumental in forc-ing the bill through Congress with minimaldiscussion or debate in the panicked weeksafter 9/11.

Considering the extent to which the USAPATRIOT Act is the Ashcroft JusticeDepartment’s “baby,” one might expectdepartment officials to be proud parents.Instead, they seem intent on denying thetrue nature of their creation.

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National Office125 Broad Street, 18th Fl.

New York, NY 10004(212) 549-2500www.aclu.org

Washington Legislative Office1333 H St., NW, 10th Fl.Washington, DC 20005

(202) 544-1681

seeking truth from justice - american civil liberties union— viet dinh, assistant attorney...

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