Supreme Court Unseals Documents in Patriot Act Case

August 3, 2006 12:00 am

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Government Previously Ordered ACLU to Censor Phrases
Like “Cat is out of the Bag”

> See the Newly Released Justice Ginsburg Opinion
> Read the Entire Opinion (PDF)

WASHINGTON — Following a Supreme Court order, the American Civil Liberties Union today released legal documents that were previously sealed by the government and the courts during a legal battle over a controversial Patriot Act power.

With the help of the ACLU, Library Connection in Connecticut successfully fought against the FBI’s use of a “National Security Letter” to demand patron records without a court order. The government had gagged Library Connection from identifying itself as an NSL recipient even after its identity was revealed by the New York Times. When the ACLU sought an emergency order from the Supreme Court to lift the gag last October, the government required all the court documents to be filed under seal. Those documents, available for the first time today, included copies of New York Times articles and phrases such as “the genie is out of the bottle” and “the cat is out of the bag.”

“The documents unsealed today show the absurdity of the government’s insistence that the Library Connection staff could not speak out even after the government’s negligence revealed that they were the John Doe plaintiffs,” said Ann Beeson, ACLU Associate Legal Director and lead counsel in this case. “The government’s shameful cries of ‘national security’ to hide its actions from the public is an abuse of power that only makes America less safe and less free.”

Among the documents unsealed today is a portion of the Connecticut district court opinion rejecting the government’s argument, based on secret evidence, to justify the gag on Library Connection’s identity even before it was revealed by the New York Times. In the sealed portion, U.S. District Court Judge Janet C. Hall reasoned that revealing the identity of Library Connection would pose no harm to national security because “the universe of people who could be the subject” of the NSL “would likely be in the tens, if not hundreds, of thousands.”

Today’s documents also include previously sealed portions of Justice Ginsburg’s opinion denying Library Connection’s emergency motion to lift the gag. In the portion released today, Justice Ginsburg wrote, “through inadvertence, Doe’s identity has been publicly available for several days on the District Court’s Web site and … the parties also learned that the media had correctly reported Doe’s identity on at least one occasion.”

Likewise, the documents show that the government censored direct quotes from previous Supreme Court cases cited in the ACLU’s legal papers. The cases held that the government cannot prevent the publication of information once it is disclosed to the public. Even clichés proved too dangerous to be revealed in the government’s view. Phrases like “Once the cat is out of the bag, the ballgame is over” and “the genie is out of the bottle” were also sealed.

“As an American, I am embarrassed that our government would go to such extremes to stifle free and open debate and keep non- sensitive information from the public,” said George Christian, Executive Director of the Library Connection. “It undermines trust the public has in libraries when government agents can force librarians to turn over private patron information without any kind of court order or evidence of wrongdoing.”

The government refused to lift the gag on the Library Connection while Congress debated changes to the Patriot Act, but abandoned their claims less than six weeks after the law was re-authorized. In a legal brief submitted as the debate raged on, the ACLU argued, “Now that John Doe’s identity has been widely disseminated, the government’s sole basis for the gag has wholly evaporated, and there is no conceivable further justification for employing the government’s coercive powers to silence American citizens during a national political debate of historic consequence.” That sentence remained censored by the government until today.

The previously sealed Supreme Court documents are now available in PDF format:
> ACLU’s Emergency Application to Vacate Stay (10/03/05)
> ACLU Appendix in Support of Emergency Application to Vacate Stay (10/03/05)
> Government’s Opposition to Emergency Application to Vacate Stay (10/05/05)
> ACLU Reply in Support of Emergency Application to Vacate Stay (10/06/05)
> Justice Ginsburg’s Opinion (10/07/05)

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