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EPIC v. Department of Justice ("Otter Amendment Case")

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On July 22, 2003, the U.S. House of Representatives voted 309-118 in favor of the "Otter Amendment" (named for its sponsor, Rep. C.L. "Butch" Otter), which provided that none of the funds in a Commerce, State, and Justice Department appropriations bill could be used to execute "sneak and peek" warrants authorized by the USA PATRIOT Act. On August 14, the Executive Office for United States Attorneys sent a memorandum to all federal prosecutors, urging them to "call personally or meet with . . . Congressional representatives" to discuss the "potentially deleterious effects" of the Otter Amendment.

The memorandum, which was issued just as Attorney General John Ashcroft began touring the country to defend the USA PATRIOT Act, attracted media interest throughout the United States, and was the subject of editorals in major newspapers. The New York Times noted that "One member of Congress, Representative John Conyers Jr., a Michigan Democrat, has charged that Mr. Ashcroft's lobbying campaign, in which United States attorneys have been asked to participate, may violate the law prohibiting members of the executive branch from engaging in grassroots lobbying for or against Congressional legislation." The Washington Post concurred: "This campaign . . . uncomfortably blurs the line between law and politics."

In September 2003 EPIC asked the Department of Justice for documents related to the memorandum, and also asked that the request be processed expeditiously because there existed an "urgency to inform the public concerning actual or alleged Federal Government activity," as well as "a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." The DOJ refused to expedite processing of EPIC's request on the grounds that the memorandum was not a subject of exceptional media interest, and raised no questions about the government's integrity that might affect public confidence. The DOJ further determined that there was no urgency to inform the public about the issues raised by the memorandum.

EPIC filed suit in federal court, asking that the DOJ be ordered to release immediately the requested material. EPIC moved for partial summary judgment in October to resolve the issue of expedited processing. The DOJ opposed EPIC's motion and filed a cross motion for summary judgment in November. U. S. District Judge James Robertson heard oral argument on December 8, and ruled on December 19 that EPIC's request was not entitled to expedited processing. EPIC has appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. The DOJ has cross appealed. The case is slated for oral argument in January 2005.

As the case is pending, the DOJ has processed and released documents responsive to EPIC's request on a non-expedited basis. The documents reveal that last fall the DOJ conducted a "PATRIOT Act Outreach Initiative," a vast public relations campaign intended to garner support for the PATRIOT Act and oppose revisions to the controversial law.

The DOJ has released the memorandum that prompted EPIC's Freedom of Information Act request last year. The document reveals that the Justice Department launched a multi-pronged lobbying initiative in August 2003, which included the Attorney General's 16-state, 18-city PATRIOT Act tour and requested that prosecutors conduct community outreach efforts to bolster public opinion of the PATRIOT Act. The memorandum also asked prosecutors to "call personally or meet" with members of Congress to discuss "the potentially deleterious effects of the Otter Amendment . . . as you deem appropriate." The memorandum reflects the Departmentís concern that the aggressive nature of the campaign came uncomfortably close to violating the Anti-Lobbying Act. After urging the prosecutors to conduct community meetings, the memo noted: "[y]our role is educational only. You must not encourage citizens or public officials to make congressional contacts, or to attempt to influence any vote concerning the USA PATRIOT Act." When asking prosecutors to contact congressional representatives, the memo stated:

As the presidentially-appointed United States Attorney, you are authorized to make these requested congressional contacts to educate the congressional representatives in your district on the PATRIOT Act, and the Otter Amendment and their impact on law enforcement efforts to fight terrorism. You are authorized to make this contract through a personal visit and/or a personal telephone call. No one else on your office, even at your request, is authorized to make these congressional contacts. If there are professional or personal reasons that you would like someone other than yourself to make these congressional contacts, you must call [the Executive Office for United States Attorneys] and we will assist you in obtaining the necessary approval[.]

A number of heavily redacted internal e-mails with such subject lines as "Court-appointed USAs," "Anti-Lobbying Act," and "Senate Contacts" apparently discuss the legality of the United States Attorneys' efforts to further the Initiative.

EPIC also obtained dozens of reports from prosecutors back to the EOUSA on their extensive efforts to advance the campaign. One e-mail from an Oregon prosecutor reported:

We have (1) prevented the state legislature from adopting an anti-Patriot Act measure, after it passed the State Senate 23-2 . . . (2) held a town hall style meeting, which I chose to do via a very popular radio call in show here, and which went quite well; (3) met with each member of the Portland City Council . . . to try and prevent a City Council resolution against the Patriot Act. Although they will probably pass some sort of resolution, we have reason to believe that it will be so watered down that we will be able to live with it; (4) published an op-ed piece in the Oregonian, and assisted in the publication of two other pieces favorable to the Act; (5) gave various speeches around the state.

Another report from a prosecutor in Colorado stated that since January 2002 he had made "86 public appearances to speak about the domestic war on terrorism, including the Patriot Act. He has spoken to over 30 service clubs and 30 law enforcement groups." In the weeks after the Initiative was announced, the prosecutor scheduled nine public speaking engagements and contacted seven members of Congress regarding the Act.

Other reports indicate that some prosecutors traveled or offered to travel to Washington, DC to meet with congressional representatives. One prosecutor from Louisiana stated, "Senator Breaux has been difficult to pin down due to his busy schedule. I was able to speak with members of his local staff last Monday . . . and have arranged to speak with him via telephone this week. (I'd like it to be known that I offered to travel to Washington, D.C. or anywhere else to accommodate Senator Breaux's busy schedule.) I will report on that conversation/meeting when it occurs."

A prosecutor in South Carolina indicated that the White House and Republican leadership in Congress intended to negotiate the Otter Amendment and other objectionable legislative measures out of existence:

I received permission . . . for AUSA Sean Kittrell (a former staffer of Sen. Hollings) to meet with the Sen. on my behalf. Mr. Kittrell made several attempts to contact Sen. Hollings prior to meeting with Sen. Hollings' AA, [name redacted]. Mr. Kittrell believes he had a "very positive" conversation with [name redacted] who would brief Sen. Hollings. [Name redacted] commented that there would likely be an Omnibus Bill for FY 04 with the result that amendments such as Otter's would be negotiated between the White House and the Republican leadership . . . and that it may be a "non-issue."

The documents show that at least 65 prosecutors made no few than 244 actual or attempted contacts with members of Congress to urge them not to support changes to the PATRIOT Act.

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Last Updated: March 21, 2005
Page URL: http://www.epic.org/open_gov/otter/default.html