- U.S. Uses Secret Evidence In Secrecy Fight With ACLU
By Dan Eggen
Washington Post Staff Writer
Friday, August 20, 2004; Page A17
The Justice Department is using secret evidence in its ongoing legal
battles over secrecy with the American Civil Liberties Union, submitting
material to two federal judges that cannot be seen by the public or even
the plaintiffs, according to documents released yesterday.
In one of the cases, the government also censored more than a dozen
seemingly innocuous passages from court filings on national security
grounds, only to be overruled by the judge, according to ACLU documents.
Among the phrases originally redacted by the government was a quotation
from a 1972 Supreme Court ruling: "The danger to political dissent is
acute where the Government attempts to act under so vague a concept as
the power to protect 'domestic security.' Given the difficulty of
defining the domestic security interest, the danger of abuse in acting
to protect that interest becomes apparent."
Justice officials also excised language describing one of the
plaintiffs: "provides clients with email accounts" and "provides clients
with the ability to access the Internet." The identity of the company in
question remains secret to the public.
Justice Department spokesman Charles Miller declined to comment, saying
the cases involve ongoing litigation.
The disclosures provide the latest example of the Bush administration's
aggressive classification of documents and information related to
terrorism and other national security issues, even as its efforts have
come under increasing attack in the courts, in Congress and from the
Sept. 11 commission. Earlier this week, a federal judge in New York
ordered the government to turn over documents about its treatment of
detainees to the ACLU and other groups as part of a Freedom of
Information Act request.
The documents released by the ACLU yesterday come from two court
challenges to portions of the USA Patriot Act, which gives the FBI and
the Justice Department wider latitude in conducting searches and
surveillance in terrorism investigations and in many other criminal cases.
The first lawsuit, filed in federal court in Detroit last year,
challenges the FBI's ability to seize library records, medical files and
other "business records" without a traditional search warrant. The
second, filed in New York in April, alleges that the FBI's use of a tool
known as a "national security letter" to obtain financial records and
other documents from businesses is unconstitutional.
The ACLU said yesterday that, in each case, the government has filed an
affidavit with the courts that the plaintiffs in the case are barred
from seeing in whole or in part. The Detroit filing appears to involve
classified material, but ACLU lawyers have no idea what is contained in
a secret affidavit in the New York case.
The use of "secret evidence" is unusual in any case, but particularly in
the civil courts, according to legal experts. Such evidence was used in
a number of high-profile immigration cases in the late 1990s to detain
noncitizens of Arab descent on suspicion of terrorism, but it has rarely
been used since then, experts say.
Instead, prosecutors in national security cases commonly share
classified information with defense attorneys on the condition that it
cannot be divulged to the public.
"There is no case law that says it's okay to give classified information
just to the court" in civil cases, said Ann Beeson, an ACLU attorney.
"They should also give it to us under a protective order."
The ACLU's battle with Justice Department attorneys has been especially
pitched in the New York case, which was initially filed under seal to
avoid violating secrecy rules in the Patriot Act.
In the latest illustration of the dispute, the ACLU posted on its Web
site yesterday several court documents in which phrases and passages
that the government had initially censored are highlighted. In addition
to the Supreme Court quotation, the censored passages include general
descriptions of the unidentified company that has joined the ACLU in its
lawsuit, such as the type of customer information it compiles and the
fact that the company does consulting work.
"It's so innocuous," Beeson said. "It's hard to imagine how they would
think this would be a threat to national security to divulge this kind
In fiscal 2003, federal agencies decided to classify documents more than
14 million times, a 25 percent increase from the year before, according
to the Information Security Oversight Office, which keeps track of
classification decisions. At the same time, the total number of pages
declassified by the government dropped to its lowest level in at least
10 years, according to the office.
"It casts suspicion on the whole system," said Steven Aftergood,
director of the Project on Government Secrecy at the Federation of
American Scientists. "When the administration says national security is
at stake, you really have to wonder if it is or isn't."
In its final report released last month, the Sept. 11 commission sharply
criticized the government for classifying too much information. It said
the 2001 attacks might have been postponed if the government had
publicized the August 2001 arrest of an alleged al Qaeda conspirator. A
House subcommittee headed by Rep. Christopher Shays (R-Conn.) has
scheduled for Tuesday a hearing on overclassification titled, "Too Many
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