August 27, 2005
Our new Patriot Act case, opposing the government's demands for information
from a Connecticut institution with library and Internet records, is among the best-timed and most Orwellian that I have seen during my four years as head of the ACLU.
Best-timed because even as I write this Congress is considering expansions to the Patriot Act, and here we have a case in which FBI demands for information were made under a Patriot Act provision that doesn't require ANY judicial authorization.
As The New York Times editorial board pointed out today
, "It turns out that they were right to be concerned." And as the editorial also emphasizes, this news underscores the importance of Congress's impending debate on the Patriot Act, and the need for reasonable restrictions on law enforcement and "changes that make the Patriot Act better, not worse."
It's Orwellian at an even a deeper level because our client is gagged from joining the public debate at this critical time in the democratic process. The ACLU itself can't even talk about what type of institution our client is. We can say they collect library and Internet records, and that they are members of the American Library Association, but we have to leave it at that for fear of violating the Patriot Act gag provisions. Needless to say, the First Amendment has seen better days.
ACLU is seeking an emergency order to lift the gag
and allow our client to engage fully in the public debate that defines our political process. Our Associate Legal Director, Ann Beeson, will be in court next week making these points on our behalf.
Meanwhile we have to get as much of the story out as possible and get folks to pressure their members of Congress to do the right thing come September.
Too much "gotcha politics" diminishes this profound debate about the nature of our democracy, but the events of the last couple of days require us all to look at the contrast between the government's words and the deeds that this lawsuit has brought to light. Especially when John Ashcroft demonized librarians and civil libertarians as "hysterical" for our concerns over the Patriot Act.
Giving the government powers to demand personal records without any judicial approval is like leaving a loaded gun around the house. It will go off in the wrong direction someday. We do not know if the gun that just went off was turned on the right target.
Yesterday's anonymous government source
(I guess the gag only works one way) said that all the facts haven't come out. We hope they do come out, including whether the government has a well-founded reason to get these records? And if so, why shouldn't it be forced to articulate those facts and reasons before a judge prior to making its demands? Why discard our system of checks and balances?
As the Times points out, our concerns about the Patriot Act were not over whether these excessive powers had already been used, but because we expected they would be. We have a chance to reform these powers in coming months. We must use the time we have and push our leaders to do just that.