NEW YORK - In previously sealed legal papers made public today by the
American Civil Liberties Union, an unnamed librarian expressed fears of imprisonment
if he were to violate a gag order in a challenge to a controversial Patriot
Act power used by the FBI to demand library records.
The papers, which were ordered unsealed by the judge in the case, include three
affidavits and a legal brief. One of the affidavits was filed by a librarian
charged with educating the library community and general public about intellectual
freedom. The unnamed librarian is a representative of the ACLU's "John
Doe" client in the case.
"One of the ultimate ironies of this case is that the Patriot
Act has effectively gagged free speech about the Patriot Act,"
said ACLU Associate Legal Director Ann Beeson, the lead lawyer in the case.
In a hearing yesterday before Judge Janet Hall of the U.S. District Court in
Bridgeport, Connecticut, the ACLU argued that its client has a First Amendment
right to participate in the current debate in Congress over reauthorizing or
expanding the Patriot Act. The ACLU is seeking an emergency court order to lift
the gag so that the client may speak to Congress, the press and the public about
his firsthand experiences with the Patriot Act. A transcript of yesterday's
argument was also made public today.
The lawsuit specifically challenges the National Security Letter (NSL) provision
of the Patriot Act, which authorizes the FBI to demand a range of personal records
without court approval, including library records and the identify of people
who have used library computers. The Patriot Act dramatically expands the NSL
power by permitting the FBI to demand records of people who are not suspected
of any wrongdoing.
"I believe that members of the public have a right to know that
their library records are subject to what I believe are unconstitutional government
searches," said an unnamed representative of the ACLU's "John
Doe" client. "But for the gag, I would inform members of the public
about the NSL power and its application in the library context. Because of the
gag, I am afraid that if I publicly discuss the NSL power I will subject both
[name redacted] and myself to serious sanctions, including possible imprisonment."
Papers reveal that the client, whose identity must remain a secret under the
permanent gag, "strictly guards the confidentiality and privacy of its
library and Internet records." The client is a member of the American Library
Association and the Connecticut Library Association and possesses "a wide
array of sensitive information about library patrons, including information
about the reading materials borrowed by library patrons and about Internet usage
by library patrons."
In an affidavit supporting the release of the gag order, ACLU Executive Director
Anthony D. Romero noted that the gag "has straitjacketed our ability to
inform the press, the public and Congress about the government's use of a dangerous
new power. More importantly," he added, "the public and Congress are
being denied information essential to the public and legislative debate that
is at the heart of democratic self-governance."
The lawsuit, ACLU v. Gonzales, was filed on August 9. It names as defendants
Attorney General Alberto Gonzales, FBI Director Robert Mueller, and an FBI official
whose identity remains under seal. Both the national ACLU and its Connecticut
branch said they were forced to file the lawsuit initially under seal to avoid
penalties for violating the gag provision. A ruling on the emergency court order
to lift the gag is expected next week.
Attorneys in the case are Beeson, Jameel Jaffer and Melissa Goodman of the
national ACLU and Annette M. Lamoreaux of the ACLU of Connecticut.
The ACLU has created a special Web page on its National Security Letter litigation,
which includes links to legal papers, online at www.aclu.org/nsl.
The affidavit of the librarian who works for the ACLU's Doe client is available
online at http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=19015&c=262.
The affidavit of another individual who represents the ACLU's Doe client is
available online at: http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=19017&c=262.
The affidavit of ACLU Executive Director Anthony D. Romero is available online
The redacted version of the ACLU's request for a Preliminary Injunction is
available online at: http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=19024&c=262.
The transcript of the hearing is available online at: http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=19027&c=262.