GOVERNMENT leaders repeatedly said it wouldn t be an issue. The likelihood of law enforcement officials snooping on library records in counterterrorism investigations was practically nil, they said. They were wrong.
Supporters of the federal Patriot Act dismissed those who worried about the government using national security as an excuse to step on civil rights. But civil libertarians knew better, and a case before U.S. District Court in Bridgeport, Conn., confirms their suspicions.
The case is antithetical to everything Americans hold dear about our legal system. Details of the government s complaint are secret. It was filed secretly against a library whose identity, under the Patriot Act, must remain secret. And the proceedings are being carried out in such guarded terms that it can hardly be called open court.
A representative of the library is not even allowed in the courtroom, although he or she is watching secretly apparently via a closed-circuit hookup.
Under the Patriot Act the government commands such secrecy as it searches personal records from bookstores, businesses, hospitals, and libraries all without ever identifying the supposed threat.
This is the first public challenge in federal court to one of the more controversial clauses of the Patriot Act. The American Civil Liberties Union wants Judge Janet Hall to lift a gag order on the recipient of the FBI subpoena.
ACLU attorneys say the constitutional right to free speech of their client who wants to participate in the ongoing debate in Congress to renew parts of the Patriot Act is being violated because of the gag. Prosecutors say the gag order prevents the release of the client s identity, not the client s ability to speak about the Patriot Act.
The ACLU counters that the recipient of the FBI subpoena, known as a national security letter, should be able to say the federal agency used its powers against it and shouldn t have. Any criticism of government power is entitled to the highest degree of protection, argued Ann Beeson for the ACLU.
The point can t be overemphasized in the debate pitting national security against the First Amendment. And it is disconcerting, to say the least, that so much of the Connecticut case is being debated under the cloak of secrecy.
While there are clearly ongoing investigations that may warrant concealment of related materials and identities, such a rationale can also be twisted to hide whatever abuses of power the government may have engaged in to obtain personal information on private citizens.
In some respects this challenge to the Patriot Act couldn t come at a better time. While the House ignored the protests of civil liberty groups by voting to keep the library clause in the law, along with several other provisions set to expire at the end of the year, the Senate is set to take up the issue in the fall.
It need only look to the battle in Bridgeport to understand the constitutional stakes. Giving law enforcement the tools it requires to thwart crime and terrorism is critical for effective protection. And few dispute the need to strengthen the system after 9/11.
But there must be balance between protecting the physical safety of the public and protecting its endangered civil liberties. Finding an acceptable center that sacrifices neither security nor freedom is the difficult but imperative task of the Senate.