ACLU Criticizes Efforts to Stifle Debate and Tie Hands of Courts

NEW YORK – Less than six weeks after the reauthorization of the Patriot Act, the government has given up its legal battle over a gag order on Connecticut librarians affected by a controversial provision of the law, which will allow them to speak publicly for the first time about their objections to secret FBI demands for patrons’ library and e-mail records, the American Civil Liberties Union announced today.

Once the necessary court procedures are complete –- which may take several weeks -- the ACLU said it will hold a news conference to introduce the librarians to the public and give them a chance to finally be heard.

While hailing the concession as a victory, the ACLU sharply criticized the government for its efforts to stifle voices of opposition during the height of the Patriot Act reauthorization debate.  "Here is yet another example of how the Bush administration uses the guise of national security to play partisan politics," said ACLU Executive Director Anthony. D. Romero. "The American public should keep this in mind the next time a government official invokes national security in defense of secrecy."

The flip-flop was disclosed to the Second Circuit Court of Appeals in a letter brief filed by the government under seal last week and made public today. In the letter, the government states that it “will not oppose” the lifting of the gag.  The ACLU’s response, ALSO made public today, notes that the government "has in essence abandoned its appeal" of the Connecticut court ruling striking down the gag order on the ACLU's "John Doe" clients.  In that ruling, Judge Janet Hall declared that library organizations had a First Amendment right to engage in the "current and lively debate in this country over renewal of the Patriot Act." 

The case was one of two challenges brought by the ACLU in New York and Connecticut to a surveillance power that was dramatically expanded by Section 505 of the Patriot Act.  The Patriot Act power permits the FBI to demand, without court approval, records of people who are not suspected of any wrongdoing.  Anyone who receives such a demand -- known as a National Security Letter, or NSL -- is gagged from disclosing that the FBI demanded records. Press reports have indicated that the government has issued over 30,000 NSLs.  Lower courts in both cases held that the NSL provision violates Americans' constitutional rights. 

Following Congress' reauthorization of the Patriot Act, the Second Circuit Court of Appeals, which last fall heard appeals of both rulings but has not yet issued a decision, asked the ACLU and the government to submit briefs explaining the impact of the Reauthorization Act on the pending lawsuits. Once the Second Circuit rules, the cases are likely to be appealed to the Supreme Court, which could hear arguments as early as next year.

While the government has given up on the specific gag in the Connecticut case, it is pursuing its appeal of the New York decision, which struck down the entire National Security Letter provision as unconstitutional. It argues that the recent changes made by the Reauthorization Act cured any constitutional defects in the law. 

In fact, the amended NSL provision still allows the FBI to gag NSL recipients and forces courts to rubberstamp FBI decisions, said the ACLU, which asked the Second Circuit to affirm the decision striking down the law.

"The government has now gone from gagging librarians to binding the hands of courts," said ACLU Associate Legal Director Ann Beeson. "If it were up to this administration, the courts would merely act as a rubber stamp for its extreme interpretations of the law."

The ACLU and its allies from across the political spectrum fought many of the more extreme measures of the Patriot Act during the course of the reauthorization debate.  In one notable victory, the Act no longer denies NSL recipients the right to challenge the law.  As a result, the ACLU today informed the court that it would drop that part of its legal challenge on appeal.  

The ACLU's letter brief, which was filed under seal on April 6 and unsealed in part today, is online at: www.aclu.org/natsec/gen/24996lgl20060412.html

More information about the ACLU's challenges to National Security Letters is online at: www.aclu.org/nsl