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By Mandy Simon, ACLU Washington Legislative Office.

Today’s a big week for National Security Letters, the secret government subpoenas issued to gain access to personal or business records without court approval. There’s a hearing tomorrow in the House Judiciary Subcommittee on Constitution, Civil Rights and Civil Liberties and another hearing Wednesday in front of the full Senate Judiciary Committee. Tomorrow’s hearing features not only the ACLU but the DOJ Inspector General himself, Mr. Glenn Fine, and FBI General Counsel Valerie Caproni. The government panelists will go first but we’ll be there, ever watchful, until it’s our turn to step up to the mic.

Mr. Jameel Jaffer, director of the ACLU National Security Project, will be ready to explain just why the ACLU feels the NSL statute is, to put it lightly, constitutionally unsound. Jameel and the others at the project have fought in the courts to bring the NSL power in line with the Constitution, to ensure businesses that get NSLs have a right to challenge them in court, and to protect the First Amendment rights of the people who receive them. For instance, NSLs typically come with a gag order that bars recipients from disclosing it got an FBI demand for records In a case we filed on behalf of a gagged NSL recipient, a federal court recently struck down the entire NSL statute after finding the gag provisions unconstitutional.  

We’ve also been using Freedom of Information Act requests to compel disclosure of information about the government’s abuse of the NSL power. The most recent thing we received back were documents hinting that the Defense Department, which has a much more limited NSL power, was sending requests through the FBI to get information it was not otherwise allowed to get.

NSLs have been around for awhile but the Patriot Act greatly broadened the statute. It broadened it so much, in fact, that it gave the FBI leeway to demand information about people even when the FBI did not suspect them of doing anything wrong. Using NSLs, the FBI can create files on innocent people based on the financial information, credit information, phone records, Internet records, and even First Amendment-protected information the NSL is allowed to grab. Since the FBI collects this information secretly, we were always wary that the statute would be abused. The consecutive reports on the FBI’s use of NSLs from the Justice Department’s Office of Inspector General showing systematic and widespread abuse have proven us right. The latest showed that the bureau, on its own initiative, issued NSLs to get sensitive information after the FISA court had already rejected its requests.

The FBI believes it can control this power with internal guidelines. We say you can’t rebuild a house on a rotten foundation and the NSL statute demands outside oversight and strict limits in the law about whom they can collect information. We think Representative Nadler’s bill strikes a healthy balance between civil liberties and the government’s ability to go after legitimate threats. And we plan to tell him that tomorrow.

For more information, come check out our website.

Originally posted to ACLU on Mon Apr 14, 2008 at 01:16 PM PDT.

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