- The Washington Times - Thursday, August 25, 2005

The Justice Department is using a provision of the Patriot Act to scour library records just weeks after assuring Congress it had not used that portion of the law, according to a lawsuit unsealed yesterday.

The lawsuit, filed by the American Civil Liberties Union (ACLU) on behalf of an unidentified plaintiff, requests the U.S. District Court in Connecticut lift a gag order preventing the target of the secret FBI subpoena from revealing itself.

The ACLU said its client wants to be able testify before Congress as it debates renewal of the Patriot Act provision that gives the FBI access to records of public libraries, universities, businesses and public interest organizations in terrorism investigations.

“Our client wants to tell the American public about the dangers of allowing the FBI to demand library records without court approval,” said Ann Beeson, ACLU associate legal director and lead case lawyer.

The partially redacted lawsuit filed Aug. 9 against Attorney General Alberto R. Gonzales and FBI Director Robert S. Mueller III includes the National Security Letter citing Title 18, Section 2709 of the Patriot Act that allows access to business records including library and Internet records.

The information sought by the FBI is redacted in the letter, which warns that the Patriot Act “prohibits any officer, employee, or agent of yours from disclosing to any person that the FBI has sought or obtained access to information or records under these provisions.”

A Justice Department official yesterday declined to discuss the lawsuit.

“We do not have any comment; that is all that we can say at this time,” said Charles Miller, Justice Department spokesman.

The court has granted the ACLU an emergency Aug. 31 hearing.

The House and Senate judiciary committees held more than a dozen hearings in June and July on the Patriot Act, which expires Dec. 31, and the specific provision affecting libraries. Several Justice Department officials testified that such National Security Letters never have been enforced with libraries.

Bob Barr, chairman of Patriots to Restore Checks and Balances, says the sudden use of the provision after months of denials only hurts the government’s case that Congress should renew that portion of the law.

“I think this creates further a credibility gap for the government, and it is certainly fortuitous this came out before final action is taken by Congress,” Mr. Barr said.

“Now, members of Congress will vote on a final conference report knowing that the FBI has in fact been using these provisions to get library information, and Congress won’t be making a decision based on erroneous information put out there earlier.”

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