Judges 'troubled' by secrecy provision in Patriot Act


By MARIAN GAIL BROWN mgbrown@ctpost.com

NEW YORK — Attorneys sought on Wednesday to defang the government's case for barring a Connecticut librarian from revealing he received an FBI demand for patrons' Internet and circulation records.

Judges on the 2nd U.S. Circuit Court of Appeals said they were "troubled" by provisions in the USA Patriot Act under which the FBI can order librarians and others to turn over records and permanently forbid them from talking about it.

The three-judge panel had pointed questions for the U.S. Department of Justice and the American Civil Liberties Union, which brought the suit on behalf of the unnamed Connecticut librarian.

Judge Richard J. Cardamone asked why there is no mechanism for determining when the gag order can be lifted.

"Otherwise, it throws our society into a great shroud of secrecy," said Cardamone, who considered the case with judges Barrington D. Parker Jr. and Joseph M. McLaughlin.

They did not issue a decision Wednesday.

At issue is a Patriot Act provision that allows the FBI to issue National Security Letters — administrative subpoenas seeking records from librarians, bookstore owners, Internet-service providers and others.

The act, passed to thwart terrorism in the wake of the 9-11 attacks, requires recipients of the letters to comply and forbids them from revealing that the FBI asked for the information.

The case involving the Connecticut librarian represents the first confirmed instance of the government using the letters to demand library records under the Patriot Act. The librarian, identified in court documents only as "John Doe," is employed by an organization that maintains library electronic data.

The ACLU contends the Patriot Act provision represents a prior restraint on free speech in violation of the librarian's First Amendment rights.

Because of that, the ACLU argues, he cannot step forward to participate in the debate over whether Congress should renew the Patriot Act. Many provisions are set to expire at the end of this year.

"We think it's clear our client has a very important message to convey to the public," ACLU lead attorney Ann Beeson said.

The ACLU also says the Patriot Act provision is unconstitutional because the FBI can issue the letters without judicial oversight.

The government argues that the secrecy provisions are necessary to avoid tipping off subjects of terrorism investigations that they are under scrutiny.

The government's lead counsel, Douglas Letter, said the Patriot Act does not specify criminal sanctions for violating the gag order.

As for what is keeping the Connecticut librarian from making his identity

known, if not fear of criminal prosecution, Letter said, "I just think he wants to be a good, law-abiding American citizen."
He also said it does not violate the law to hire a lawyer and challenge the gag order, although that is not spelled out clearly either in the Patriot Act or the letters.

"The Justice Department has urged Congress to make it clearer," he said. "As with many statutes, Congress could have written it better."

Absent an act of Congress, Letter said the Justice Department has authority to revamp the wording of its National Security Letters. But he stopped short of promising it would. The case landed in federal appeals court after U.S. District Court Judge Janet C. Hall issued a preliminary injunction in September that would allow the librarian to disclose who he is and testify as to how receiving the FBI demand has upended his life. The government appealed Hall's ruling.

The 2nd Circuit Court of Appeals is also considering a separate appeal brought by the government after a lower court held that agents violated a New York Internet service provider's Fourth Amendment protection against unreasonable search and seizure by demanding records.

The ACLU's Beeson said rewording the National Security Letters won't cure the Patriot Act of its "coercive" effect.

Furthermore, she said, "the government has not come close" to showing how the law is narrowly tailored to achieve a compelling government interest to overcome the librarian's Constitutional rights. She said her client's potential testimony before Congress might be as persuasive as any that might come from a high-ranking government official with firsthand experience dealing with the Patriot Act.

Bridgeport City Librarian Michael Goldrick, who watched the appellate court arguments Wednesday, nodded in agreement as the judges raised questions about the secrecy rule.

"My day job as a public librarian means I am entrusted with their privacy," he said outside the courtroom later. "I believe in open and transparent government, and this [lack of judicial oversight and] these provisions for secrecy in perpetuity undermine that."

MariAn Gail Brown, who covers regional issues, can be reached at 330-6288.