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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.

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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 of information."

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 Secrets."

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