The Sun Will Not Set

The inevitable renewal of the USA Patriot Act has been accomplished without any real challenge.

The provisions of the far-reaching legislation which were scheduled to sunset have been unanimously reapproved by the House and Senate.

The USA Patriot Act, designed intitially as an immediate response to the purportedly growing threat of terrorism in a post-9/11 world, has been used and widely abused by law enforcement and prosecutors over the past several years.

Perhaps the most enduring justification for the Patriot Act is that it merely extends the same tools previously available against organized crime and drug dealers to terrorists. But this misleads. Repeated declarations by Administration officials that wiretaps could not previously be obtained against terrorists are simply false. Wiretaps could always be obtained for criminal investigations of terrorists. The Patriot Act expanded the legal grounds for roving wiretaps, in particular, to also make them available to the FBI under the separate counterintelligence authority (and lower standards) of the Foreign Intelligence Surveillance Act.

These broader surveillance powers can now be used even against innocent Americans not suspected of any crime or terrorism. And by importing the foreign intelligence powers previously available only against spies and terrorists into the domestic criminal context, the Patriot Act grants authorities broad and constitutionally dubious new muscle to use as they see fit.

The FBI's and CIA's history, along with the significant recent reports about investigation and harassment of peace groups, dissenters and organizations like the ACLU, should give us pause about uncritically accepting the deceptive rationalizations--especially with the political polarization and powerful new surveillance technologies available today.

However, take heart in the fact that Big Brother is receiving opposition from at least one vocal group. The librarians are fed up with the government's persistent use of administrative subpoenas, known as National Security Letters, to demand library records without court approval or judicial supervision.

One librarian, known only to us as "John Doe" has successfully challenged the Patriot Act's authority in United States District Court. However, unfortunately, a gag order has issued that will prevent Mr. Doe from disclosing his identity or otherwise publicly discussing his experience with the Patriot Act's draconian provisions pending the government's appeal to the Second Circuit Court of Appeals.

In fact, the American Library Association and the Freedom to Read Foundation recently joined with the Association of American Publishers and the American Booksellers Foundation for Free Expression to file an amicus brief before the Supreme Court supporting John Doe's request for immediate relief from the gag order imposed upon him. On October 7, 2005, the Supreme Court rejected Doe's application for emergency relief. Consequently, Doe was prevented from participating in the exceedingly important recent Congressional dialogue regarding the renewal of the Patriot Act.

It is crucial that we keep a watchful eye on the Second Circuit Court of Appeals and its upcoming decision regarding the constitutionality of the Patriot Act. More importantly, Doe v. Gonzales may indeed become the case which squarely places this divisive issue before the United States Supreme Court.