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Fierce Fight Over Secrecy, Scope of Law

Information vs. Security

Exasperated with how little they knew about the ways the Patriot Act was being applied, the ACLU and the Electronic Privacy Information Center, a Washington-based public interest group, went to court last October with a freedom of information complaint against the Justice Department. Before a judge dismissed the case in May, Justice officials released a few hundred pages that said little about their activities. One document was a six-page list of instances in which "national security letters" had been issued to authorize searches -- with every line blacked out.

Last year, the House and Senate Judiciary committees -- charged with overseeing the Justice Department -- began to send the agency written requests for statistics summarizing how often Patriot Act provisions had been used. The first replies largely made clear that the information sought by lawmakers was classified.

In such a climate of official secrecy, there are nevertheless small clues to the extent the law is helping authorities' anti-terror work.

In May, the Justice Department told Congress that it had asked courts for permission to delay notifying people of 47 searches and 15 seizures of their belongings. The document said the courts had consented every time but one, but it did not detail why the delays were needed.

The next month, in testimony before the House Judiciary Committee, Ashcroft said he personally authorized 170 emergency orders to conduct surveillance, allowing investigators 72 hours before they must seek permission from an obscure, secret court whose role has been expanded under the law.

Created a quarter-century ago under the Foreign Intelligence Surveillance Act (FISA), the special court requires a lower burden of proof than criminal courts do when authorizing wiretaps and other forms of surveillance. Before Sept. 11, 2001, its primary focus was foreign intelligence cases.

Under the Patriot Act, investigators can go before the court in cases that are primarily criminal as long as they have some foreign intelligence aspect. Ashcroft told the committee that those 170 emergency FISA orders represented three times as many as had ever been authorized before Sept. 11, 2001 -- but he did not disclose how many of them had involved terrorism cases.

Nor has the department said how often it has used FISA court orders to search libraries, the realm that has provoked perhaps the strongest negative reaction. The Justice Department's interest in libraries revolves around their public computers, over which potential terrorists could communicate without detection. One source familiar with the department's activity said that FBI agents had contacted libraries about 50 times in the past two years, but usually at the request of librarians and as part of ordinary criminal investigations unrelated to terrorism. As for how many times the government has used the law's powers to enter a library, a senior Justice official said, "Whether it is one or 100 or zero, it is classified."

As their main examples of the law's usefulness, Justice officials cite a few high-profile cases, some involving suspected terrorism. Perhaps foremost among these cases, agency officials say, is that of a former computer engineering professor in Florida, Sami Al-Arian, who was charged in February in a 50-count indictment with conspiring to commit murder by helping Palestinian suicide bombers in Israel. Ashcroft has said the indictment was possible only because the Patriot Act allows information gathered in classified national security investigations to be shared with criminal prosecutors.

Actions taken under the Patriot Act do not include designating individuals as enemy combatants, which is a constitutional power granted to the president during wartime.

Massachusetts state Rep. Kay Khan (D) learned about the use of the Patriot Act in her case after repeatedly asking why a $300 wire transfer had not reached her brother. She discovered that her husband's name was on a special list at their bank because it may have been used by someone else as an alias. "So we are on some list, which is scary," she said. "I just feel that it's intrusive."

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