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Seeking Truth From Justice

ASHCROFT: ... [I]f the judge finds that the investigation is for thesc [counter-intelligence or counter-terrorism] purposes, he orders the FISA. [emphasis supplied] ...

Exactly right. Before the USA PATRIOT Act, government agents could get some business records under FISA if they had “reason to believe" the person to whom the records related was an agent of a foreign power; now, as the Attorney General makes clear, they can get any record or other "tangible thing" that is allegedly relevant to an investigation regardless of whether the information pertains to an agent of a foreign power.

The implications of Section 215's weak evidentiary standard are frightening. The FBI can now conduct investigations using this power even when it has no particular individual in mind. For example, the FBI could demand the records of every person who has checked out a book on bridges based on no more than its investigation of a vaguc, unsubstantiated tip. The Department's suggestions that only spies or terrorists need worry about the PATRIOT Act couldn't be farther from the truth.

FALSEHOOD: The American people can trust the authorities not to abuse their powers.

What the government has been saying: "We don't have any interest in looking at the book preferences of Americans. We don't care, and it would be an incredible waste of our time," he [Corallo] said.

· Chicago Tribune April 4, 2003

The Justice Department “goes to great lengths to protect the privacy of cvery American unless you happen to be a foreign spy or member of a terrorism organization," said spokesman Mark Corallo. "The average American has nothing to fear."

- Newark Star-Ledger April 7, 2003

"We're not going after the average American," said Mark Corallo, a Justice Department spokesman. "We're only going after the bad guys. We respect the right to privacy. If you're not a terrorist or a spy, you have nothing to worry about."

Washington Post April 10, 2003

TRUTH: Democratic societies are based on checks and balances, not on blind faith in the good intentions of government officials.

With all due respect to the Justice Department, it is not enough for the government to assure us that they "go to great lengths to protect" privacy, "don't have any interest" in spying on innocent people, and are "not going after" the average American. The wisdom of the Founding Fathers, the historical record of abuses by the FBI, and common sense all point to the same conclusion: we can't rely on the FBI or any other federal law enforcement agency to police itself.

In June, for example, the Justice

Department's own internal oversight unit released a report highly critical of what it

Seeking Truth From Justice

found to be the wholesale and long-term preventive detention of immigrants swept up in the months following 9/11. According to the report issued by the Justice Department's Inspector General, many immigrants who had no connection to the terrorist attacks of September 11 languished in federal lock-up for months at a time under an official "no bond policy" that effectively prohibited their release. The INS complained that the FBI had given them no evidence to justify their continued detention, yet some immigrants still spent up to eight months waiting for release.

Conclusion: A pattern of deceit

It is time for the Department of Justice to stop misleading the American people. The public cannot make informed decisions about the future of the police powers contained in the PATRIOT Act whether to let them expire, renew them, or expand them cven more with PATRIOT Act II if the government is not truthful about the extent of its current powers.

And the falsehoods are not limited to the PATRIOT Act. In a letter to the City Clerk of Ithaca, the FBI's Keith A. Devincentis, Special Agent in Charge of the Bureau's Albany office, misstates the FBI's powers under the Attorney General guidelines on domestic surveillance. "Contrary to popular television and theatrical portrayals, the FBI initiates cases predicted on facts, not suspicions or guesswork. 'Fishing expeditions' are clearly proscribed by FBI policy, Attorney General Guidelines, and other Federal statutes and regulations," Devincentis wrote.

In fact, in the aftermath of the passage of the USA PATRIOT Act, on May 30, 2002, Attorney General John Ashcroft announced that he had rewritten the guidelines that govern FBI surveillance. The Ashcroft guidelines sever the tie between the start of an investigative activities and evidence of a crime. Ashcroft's guidelines give the FBI a green light to send undercover agents or informants to spy on worship services. political demonstrations and other public gatherings and in the Internet chat rooms without even the slightest evidence that wrongdoing is afoot. Contrary to what Devincentis wrote, the FBI is now very much empowered to conduct investigative "fishing expeditions” on First Amendment protected activities even though there is no indication of criminal activity.

At this moment, the Justice Department has clear political incentives to soft-pedal the nature of the PATRIOT Act. But we can count on the fact that government investigators and prosccutors, when they appear before judges, will be making much bolder claims about what the Act lets them do.

Some Americans might have a hard time believing that a Justice Department spokesperson could be inaccurate about basic matters of law with such flagrancy. The ACLU has certainly found that from time to time it is possible to make occasional errors about matters of law, or to be misunderstood by a reporter when discussing the law. In this case, however, we are witnessing a pattern of inaccuracy spread out over a long period of time, over a wide variety of news outlets, by various staff members, on a central issue in a prominent national debate.

Seeking Truth From Justice

The Department's inaccuracies have to do not with subtle, debatable points of legal interpretation, but clear matters of law that are spelled out in black and white in the text of the PATRIOT Act.

There is no excuse for the Justice Department to get the PATRIOT Act wrong; the Department was behind the legislation from the beginning. The Justice Department drafted the Act (most of the Act's surveillance provisions were part of a longstanding wish list that had

previously been sought by the Justice Department but rejected by Congress), and the Department was instrumental in forcing the bill through Congress with minimal discussion or debate in the panicked weeks after 9/11.

Considering the extent to which the USA PATRIOT Act is the Ashcroft Justice Department's "baby," one might expect department officials to be proud parents. Instead, they seem intent on denying the truc nature of their creation.

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