Library Challenge to Patriot Act Gag Rule Appealed

As the nation focuses attention on Harriet Miers, President Bush's nominee to fill the critical Supreme Court seat of retiring Justice Sandra Day O'Connor, America's highest court has been asked to intervene in a challenge to a controversial provision of the USA Patriot Act.

The case originated in Bridgeport, Conn. where a library was served with a "national security letter" demanding private records related to an FBI terrorism or espionage investigation. A consortium of librarians, known as "John Doe" and represented by the American Civil Liberties Union, challenged the government's right to impose a gag rule preventing them from identifying themselves and publicly expressing opposition to the Patriot Act provisions that allows the government to secure library patron records, regardless of the patron's involvement in illegal activity.

In September, U.S. District Court Judge Janet Hall ruled in favor of the librarians and the ACLU. She said the gag rule "has the practical effect of silencing individuals with a constitutionally-protected interest in speech and whose voices are particularly important in an ongoing national debate about the intrusion of government authority into individual lives."

However, Judge Hall's ruling was put on hold by a federal appeals court and now the case is being appealed to the U.S. Supreme Court. Between The Lines' Scott Harris spoke with Michael Gorman, president of the American Library Association, who explains why he strongly objects to the Patriot Act gag rule imposed on librarians and his concern about the loss of civil liberties in post-Sept. 11 America.

MICHAEL GORMAN: Well, there are two aspects of the USA Patriot Act that the ALA (American Library Association) and most librarians really object to. One way you can get a warrant from FISA (Foreign Intelligence Surveillance Act) Court -- it's called a FISA warrant -- virtually without showing any due cause to inquire into library records, bookshelf records, financial records, all kinds of records. And the other is where the authorities can just issue this so-called national security letter -- again, without showing any due cause or without any judicial review and just show up and a) Demand that records of library use for people be turned over to them, and b) That it is a felony for the librarian in question to reveal even that an inquiry had been made.

We find this objectionable on several grounds. First of all, we believe you have a right to privacy and confidentiality in your library use. And there are many instances in life when people would like to keep such things private. And really there is no business -- in a democratic country -- of the authorities what use you made of library materials.

The second thing is that we believe that there should be adequate judicial review and due cause before any such records are subpoenaed, and I would like to point out, by the way, that libraries all over the country -- and of all kinds -- have complied with legally authorized subpoenas when the police authorities go to a court and say "we want to investigate this because of a certain crime we're investigating." A judge grants a subpoena and it's an open process; everyone knows what's going on. Everyone knows what the police are inquiring into.

So, it's the unconstitutionality of it in our view, the secrecy. And, I think the secrecy business is almost -- it is linked with the freedom of the press. I mean, if the press can't report on what the authorities are doing, that is a very serious erosion of basic liberties.

We believe that particularly now, when the provisions of the USA Patriot Act, are so-called "sunsetting" and they're going to be reviewed by the Congress, it's very important that this "John Doe" be allowed to step forward and give his side of the story and talk about this kind of basic infringement of your privacy and confidentiality rights.

BETWEEN THE LINES: Well, on the question of security, Kevin J. O'Connor, a United States attorney for Connecticut, argued that lifting the gag order would harm ongoing government investigations. Of course, after September 11th, the government has taken public fear and trepidation about what terrorists might be up to as a license for the government to do this sort of thing without a lot of scrutiny. How do you feel our nation at this point should balance security with civil liberties?

MICHAEL GORMAN: You know, there's almost by now a cliché quote from one of the (founding) fathers, I forget which one -- that someone who sacrifices liberty in search of security will end up with neither.

OK, they come into a library and find out that you've borrowed a book on such and such a topic, or you've been to a website on such and such a topic; I mean, is that a crime? Is it a crime in America to read a book or to consult a website? I mean, it's what people do, not what they think and read that is criminal.

Once you give up that fundamental right to privacy, once you say the authorities are entitled to know what it is you're reading, or which lines of inquiry you're pursuing and so on, that is, in principle, a step toward a police state.

I mean, if you look at countries like China. Today, China has made tremendous efforts, abetted sometimes, I'm sad to say by American companies, to monitor and restrict access to the Internet. And, I think that there's a huge point of principle here. And, I think that people who say, "Oh well, we live in different times, there's a war on terror, therefore you have to give up that liberty" -- are really saying that whole American constitutional rights, that whole way of life that we have is worth sacrificing in pursuit of security. And I just flatly don’t think it is.

BETWEEN THE LINES: What is at stake in your view, with these provisions of the Patriot Act as it concerns the public's right to use the library without surveillance?

MICHAEL GORMAN: Right, I think that the public library has been one of the great institutions of American democracy. It's been a place where people, irrespective of their means or status in life -- whether they're rich, poor, old, young, belong to an ethnic minority or don't, have been able to go and pursue any avenue of inquiry they want, free from government interference. And that's not true in repressive states and I hope it never becomes true in this country.

I think it's going to be like the days of the Red Scare and Joe McCarthy and you know, the un-American activities thing and so on. When we look back on it, and think, "My God, what the hell were they thinking of?"

Contact the American Library Association by calling 1-800 545-2433 or visit their website at: http://www.ala.org

Related links on our website at http://www.btlonline.org/btl101405.html#2

American Civil Liberties Union at www.aclu.org
"Judge shows perfect balance: Fair, tough," by Marian Brown, Connecticut Post, Oct. 2, 2005
"Patriot Act Challenged in Connecticut," Reuters, Aug. 31, 2005
"Library Sues Over Controversial Patriot Act," Reuters, Aug. 25, 2005
"In Legal Papers Unsealed Today, Librarian Speaks of Fear of Imprisonment Over Government Gag in Patriot Act Challenge," ACLU press release, Sept. 2, 2005

Scott Harris is executive producer of Between The Lines, which can be heard on more than 35 radio stations and in RealAudio and MP3 on our website at http://www.btlonline.org. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending Oct. 14, 2005. This Between The Lines Q&A was compiled by Scott Harris and Anna Manzo.

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