----- Original Message -----
From: Kay Lee
To: Sherry Swiney
Cc: GA Jess WIlliams ; GA Thor
Sent: Friday, September 09, 2005 9:04 AM
Subject: CT - Plaintiffs Win Round in Lawsuit on Patriot Act
September 10, 2005
Plaintiffs Win Round in Lawsuit on Patriot Act
By ALISON LEIGH COWAN
BRIDGEPORT, Conn., Sept. 9 - A federal judge ruled on Friday that the government cannot continue to bar the representatives of a nonprofit organization from speaking out about the sweeping powers that the antiterrorism law known as the USA Patriot Act gives investigators seeking library records.
In a ruling being followed by librarians, civil libertarians and others involved in the continuing debate over reauthorization of the law, Judge Janet C. Hall of United States District Court granted an emergency request by the American Civil Liberties Union for a preliminary injunction. Judge Hall found that the government fell short in meeting the heavy burden of proof needed to argue that national security interests warrant ignoring the organization's First Amendment right to free speech.
The 29-page decision, if permitted to stand, would lift the federally imposed order that is keeping the nonprofit organization from identifying itself as the recipient of a recent request for patron information from the Federal Bureau of Investigation.
The judge, however, granted a stay along with her ruling giving the United States attorney's office until Sept. 20 to persuade the federal Court of Appeals for the Second Circuit to overturn her decision. If that court fails to act quickly, she wrote, then the plaintiffs would be free to identify themselves and comment on some aspects of the case.
In siding with the organization, Judge Hall said she was convinced that it had unique firsthand experience about the Patriot Act that it ought to be able to share publicly and would have greater authority in the debate if it spoke for itself, rather than had others speak for it. She stated that its "speech would be made more powerful by its ability to put a 'face' " on the debate and by the public's awareness that the speaker was known to have received a request for library records under the antiterrorism law.
She wrote that "the statute has the practical effect of silencing those who have the most intimate knowledge of the statute's effect and a strong interest in advocating against the federal government's broad investigative powers." It creates a situation where "the very people who might have information regarding investigative abuses and overreaching are peremptorily prevented from sharing that information with the public."
This round in the case did not address larger questions raised by the same lawsuit challenging whether this portion of the Patriot Act can be invoked in future cases. Also, the identity of the library patron or patrons whose records investigators are seeking is not likely to become public as part of this case.
The case was brought in August, after the F.B.I. invoked Section 2709 of the antiterrorism law to demand library records from a Connecticut member of the American Library Association through the use of what is known as a national security letter.
The organization, whose name was blacked out from all court records and was not permitted to be mentioned in open court, is believed to be Library Connection, a library consortium in Windsor, Conn., that serves as the back office for many libraries in the Hartford area. Its officials have either declined to comment or referred questions to the civil liberties union.
According to a footnote tucked in the judge's decision, she said "responses to the court's questions" suggest that "the Federal Bureau of Investigation has issued many NSL's under Section 2709 in the past, but they have not been challenged by the recipients," with the exception of the handful of cases now before the courts.
The judge rejected the government's assertion that continuing suppression of the name of the recipient was necessary to protect the investigation, after having privately viewed classified information supplied by the government about the investigation without the plaintiffs' lawyers present.
While she agreed that the government's "investigation clearly relates to national security," she concluded that government lawyers had offered more speculation than evidence that the investigation would be harmed by allowing the organization's representatives merely to confirm that they had received a national security letter.
In the meantime, she wrote, the organization's First Amendment rights were being restrained before it could make any comments at all, an infringement of the amendment that carries a heavy burden of proof.
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