History > 2006 > USA > Free Speech (I)

Librarians Win

as U.S. Relents on Secrecy Law

April 13, 2006
The New York Times
By ANAHAD O'CONNOR

After fighting ferociously for months, federal prosecutors relented yesterday and agreed to allow a Connecticut library group to identify itself as the recipient of a secret F.B.I. demand for records in a counterterrorism investigation.

The decision ended a dispute over whether the broad provisions for secrecy in the USA Patriot Act, the antiterror law, trumped the free speech rights of library officials. The librarians had gone to federal court to gain permission to identify themselves as the recipients of the secret subpoena, known as a national security letter, ordering them to turn over patron records and e-mail messages.

It was unclear what impact the government's decision would have on the approximately 30,000 other such letters that are issued each year. Changes in the Patriot Act now allow the government discretion over whether to enforce or relax what had been a blanket secrecy requirement concerning the letters.

Lawyers for the group, the Library Connection of Windsor, Conn., argued that their client was eager to participate freely in the debate last year over the reauthorization of the Patriot Act. But federal prosecutors asserted that the Patriot Act required that the group's identity remain secret and that the government would suffer irreparable harm if any information about its investigations became known.

The decision by the Justice Department to drop the case was applauded by the American Civil Liberties Union, which brought the lawsuit on behalf of the librarians. The civil liberties group said it would identify its clients at a news conference once court proceedings in the case are completed in a few weeks.

"We are obviously very much looking forward to the day where they can explain how it felt to be under threat of criminal prosecution for merely identifying themselves," said Ann Beeson, the civil liberties union's associate legal director. "The clients are happy that the fight over this gag is nearing its end."

Kevin J. O'Connor, the United States attorney in Connecticut, said yesterday that the government decided drop its case largely because the Patriot Act's secrecy provisions concerning national security subpoenas were changed to give the Federal Bureau of Investigation discretion in allowing recipients to identify themselves.

The government was also under pressure to drop its fight after mistakenly disclosing in court records the very information it was fighting to keep secret. Government lawyers failed to redact all of their references to the Library Connection in court filings, leading to the disclosure of the group's identity in The New York Times and other newspapers.

"Certainly that was a factor," Mr. O'Connor said. But he said "the legal basis" for the decision was the change in the Patriot Act giving the government the authority to allow recipients of the subpoenas to identify themselves.

"For both practical and legal reasons, we have determined that continuing to pursue this appeal does not make sense," he said.

Mr. O'Connor was in the process of appealing a decision by a federal district judge last September to allow the library to identify itself, saying the nondisclosure provision in the national security letter violated the library's First Amendment rights.

That appeal is pending in the United States Court of Appeals for the Second Circuit in New York.

Mr. O'Connor said that in light of the changes to the Patriot Act, the Justice Department would re-examine whether the secrecy requirements that apply to recipients of past national security letters should continue to be enforced.

He said the government would also make a determination when sending future letters whether the recipient would be prohibited from saying he had received one.

George Christian, the executive director of Library Connection, a cooperative of 26 libraries that share an automated system, has answered "no comment" when asked about the case by reporters. He did not respond to several messages seeking comment last night.

According to court records, the federal government's national security letter to Library Connection last year asked Mr. Christian to "personally" hand over records that might be of use in a counterterrorism investigation and that he not disclose the matter "to any person."

But the group challenged the request in federal court, arguing through its lawyers that it wanted the ban lifted immediately. The group said that time was of the essence in lifting the ban because the Patriot Act was set to be reauthorized by Dec. 31 and, as a party with an interest in the matter, it wanted the right to speak out against the act.

United States District Judge Janet C. Hall agreed with the group, ruling last year that the order of silence should be lifted. But the federal government appealed the decision, ultimately preventing the group from weighing in on how the Patriot Act should be rewritten before the Dec. 31 deadline.

Ms. Beeson said yesterday that she believed the government's decision to drop the appeal was politically timed.

"The issue over whether the government was using its Patriot Act powers to demand library records was one of the hot-button issues in this debate," she said. "And our clients could have been extremely powerful spokespeople in opposing the reauthorization of the act, because they had actually received one of those national security letters."

Now that the debate in Congress is over, she said, "There's no longer any reason to keep our clients quiet."

Mr. O'Connor dismissed that argument and said that the language in the Patriot Act was such that the federal government had no choice but to insist that Library Connection refrain from speaking out.

"I know it's being perceived as a flip-flop, but that is simply not the case," he said.

    Librarians Win as U.S. Relents on Secrecy Law, NYT, 13.4.2006, http://www.nytimes.com/2006/04/13/nyregion/13library.html

Mayor Suspends Top Jail Chaplain

While Defending Free Speech

March 15, 2006
The New York Times
By SEWELL CHAN

Mayor Michael R. Bloomberg suspended the Correction Department's top chaplain for two weeks yesterday in connection with remarks he made about the White House being occupied by terrorists. The mayor acknowledged that the words were "inappropriate and offensive," but he also offered a vigorous defense of the right to free speech, which he said was under increasing attack.

Expounding on that theme, the mayor alluded to a Danish newspaper's publication of a cartoon ridiculing the Prophet Muhammad and the controversy that engulfed Harvard's president, Lawrence H. Summers, after he suggested that women lacked men's innate abilities in science and math.

"Looking across America, it seems that free speech is being attacked by the right under the guise of patriotism and by the left through academic intolerance that stifles necessary debate," he said.

He later added: "As Americans, we should never pander to xenophobia, anti-intellectualism or convention. We must never be afraid of free speech or multiculturalism — the genesis of America's founding. And we must never use the war on terror, or political correctness, as the pretext for stifling political speech."

The mayor made his remarks in discussing how he handled the case of the chaplain, an imam who, in a speech to Muslim students in Tucson last April, asserted that "the greatest terrorists in the world occupy the White House" and made a comment about what he called "the Zionists of the media." The chaplain, Umar Abdul-Jalil, was placed on paid leave last Thursday. Yesterday, the mayor announced the imam's two-week suspension without pay for bringing discredit to the department by failing to make clear that he was speaking only for himself. The mayor said the content of the speech was not the cause of the suspension.

"I know that this decision will not satisfy extremists on either side of the political spectrum," the mayor said. "Some will demand he be fired and others would prefer no penalty at all."

The mayor's remarks came as he increasingly wades into searing national debates in his second term, taking potshots at both the right and the left. Just last week he faulted politicians critical of the Bush administration's deal with a Dubai company to take over operations of American ports, suggesting they were political opportunists. And he has repeatedly gone after the National Rifle Association and the tobacco industry.

For his part, Mr. Abdul-Jalil said he was "very disappointed" at the suspension and was considering an appeal. "It was never my intention to be disrespectful or to hurt anyone," he said. "I preach love and respect for all people of all faiths. I am sorry if my words were taken out of context and caused offense to anyone."

The correction commissioner, Martin F. Horn, concluded that Mr. Abdul-Jalil violated two departmental rules. He failed to tell his audience that he was speaking as a private citizen and not as a city official, the mayor said, and by not doing so, broke another rule prohibiting "conduct of a nature to bring discredit upon the department."

Mr. Abdul-Jalil did follow departmental policy by informing his supervisors and obtaining approval before giving the two speeches, but his failure to distinguish his personal and official roles was "a significant violation" that "has brought criticism upon himself and the Correction Department," the mayor said.

The mayor, who had promised to make the decision himself because it involved matters of principle, consulted extensively with city lawyers, including the corporation counsel, Michael A. Cardozo. In 1996 and 1997, federal judges struck down policies that required New York City employees to obtain permission before talking to the press or making a speech.

Mr. Bloomberg and Mr. Cardozo said that the decision to suspend Mr. Abdul-Jalil was consistent with previous cases. It was not clear, however, if the mayor's decision would withstand a legal challenge. The departmental rule — in effect since June 24, 2004 — requiring employees to make clear that their public statements reflect "solely the employee's opinions" appears to apply only to speech "regarding department policies or operations." In his remarks, Mr. Abdul-Jalil referred repeatedly to his work at the Correction Department and criticized the high incarceration rate in the country, but he did not claim to be speaking for the department.

Even so, city officials appear to have treated Mr. Abdul-Jalil leniently. As executive director of ministerial services, officials said, he serves at the pleasure of the commissioner without civil service protections, and could be dismissed at will.

Mr. Bloomberg, who was joined by 11 clerics, including several chaplains who work with Mr. Abdul-Jalil at the Correction Department, said that an investigation had shown the chaplain to be "a conscientious and dedicated employee" who "is genuinely liked, trusted and well regarded" and "teaches a message of tolerance, forbearance, peace and respect to the law to all faiths, equally."

Three of the six Jewish chaplains at the Correction Department — Leib Glanz, Baruch Leibowitz and Herbert D. Richtman — appeared at the news conference to support Mr. Abdul-Jalil. "The man has no, not even a fraction of, anti-Semitism in his bones," Rabbi Glanz said. He added that the other Jewish chaplains were busy with a Purim service but supported Mr. Abdul-Jalil as well.

    Mayor Suspends Top Jail Chaplain While Defending Free Speech, NYT, 15.3.2006, http://www.nytimes.com/2006/03/15/nyregion/15imam.html