Keynote Address
Presented by Nadine Strossen, President, American Civil Liberties
Union
Society of American Archivists 68th Annual Meeting
Boston, Massachusetts, August 5, 2004
I'm honored to address your important organization. I consider all of you
key colleagues on the front lines of ensuring freedom, privacy, and democracy—not
only for all of us who are alive today, but also for future generations.
As I read through the fascinating materials on your Web site, I noted the
strong libertarian theme throughout. For example, the section about SAA's
history stressed that, "[b]y the time of the French Revolution, it was
widely accepted that records were critical because they protected the rights
of the people, and that such records must be available for public scrutiny
and use." Indeed, as every human rights activist knows, the first,
essential prerequisite for rectifying any human rights abuse is documenting
it. That's why, for all human rights organizations, the most fundamental
advocacy tool is the provision of information—monitoring abuses, gathering
evidence, and issuing reports. Without such information and documentation,
we would have no basis for any kind of reform, through legislation or litigation.
That's why the kind of government secrecy that Tim Ericson so chillingly laid
out in his Presidential Address ["Building Our Own Iron Curtain: The Emergence
of Secrecy in American Government"] is antithetical to civil liberties. Not
only does such secrecy itself violate core First Amendment and democratic rights—the
right of "We the People" to know what our government is doing in
our name—but also, under the cloak of secrecy, government can more easily
violate every other right, without redress.
Let me illustrate that point by citing just one of the many Freedom
of Information Act (FOIA) requests that the American Civil Liberties Union
(ACLU) has issued, post-911, in a frustratingly difficult effort to pry key
information from our government.
Last fall, we asked the government for records concerning some plausible press
accounts that it had been subjecting detainees on Guantanamo and overseas to
abuse and torture. This was half a year before the horrific images from
Abu Ghraib first came to light this spring. Given what we all now know
about those abominations, the government's stonewalling of the ACLU's FOIA
request is more chilling than ever.
In refusing to grant the expedited processing we sought for this request,
the government baldly asserted that delay could not, to cite the Act's language, "reasonably
be expected to" endanger the life or safety of any individuals. How
I wish that that denial had been justified!
As we all know, though, life and safety are always endangered through suppression
of information—and enhanced through its dissemination. That's why,
as guardians of information—and of the public's right to access to that
information—you as archivists are natural allies with the ACLU in general,
and in particular with our post-911 campaign to keep our great country both safe and free. Access
to information about our government is something to which both of our organizations
are committed. Such access is an essential pillar of both safety and freedom
in our post-911 world.
The connection to freedom is more obvious. Equally important,
though, is the fact that the government's excessive secrecy (including the
sort of over-classification of documents that Tim has described) has been denounced
by security experts as one of the root causes of the 911 terrorist attacks
because it keeps information away from people who could have used it to detect
and prevent the attacks. This point was stressed, for example, by the
Bipartisan 911 Commission, whose report came out last week. I'd like
to read just one excerpt from the Commission's conclusion on that point: "Secrecy
stifles oversight, accountability and information sharing. Unfortunately,
all the current organizational incentives encourage over-classification. This
balance should change...."
The Commission made some recommendations to combat undue government secrecy. The
ACLU already has issued an analysis of the Commission's report, in which we
set out additional recommendations to counter unjustified government secrecy,
and we will be advocating these reforms in Congress. It would be great
to work with the SAA on that front.
* * *
I've been speaking for a while and I've ignored the conventional wisdom that
you should start every talk with a joke. I love humor, but I must admit
that even my cracker-jack law student research assistants had a hard time coming
up with archivist-oriented humor! I had assumed that the Internet is
overflowing with jokes about ALL professions—but I didn't realize that
we lawyers are so unusually lucky in that respect! Maybe some of you
can give me some pointers about hidden archives of archivist humorÉ.
For what it's worth, let me tell you the one, solitary archivist joke that
my staff did manage to discover. Last night I vetted it with Tim, Nancy,
and Sharon. None of them had heard it before, and they encouraged me
to share it with you. So here goes: Why are two archivists, married
to each other, the perfect couple? Because the older they get, the more
interested they become in each other! I understand that there are lots
of happily married archivist couples, so you can all look forward to even greater
happiness in the future!
* * *
Since the ACLU's beginning, we have worked closely with archivists. In
the organization's very first year of existence—way back in 1920—we
arranged for our papers (and those of our predecessor organization) to be archived
at the New York Public Library. I realize from your fine Web site that
the archival profession was then quite new, so I'm especially impressed by
how prescient the ACLU's founders were in understanding the importance of preserving
our organizational records. And also in stressing that the records should
be open to any member of the public who wanted to see them!
I've seen the exchange of letters between the ACLU's founders and the New
York Public Library, setting up our original archives. They're very impressive
documents. My favorite is a December 17, 1921, letter from the ACLU's
principal founder, Roger Baldwin, to Mr. E.H. Anderson, the Library's director. The
ACLU was founded to counter the unjustified suppression of civil liberties
during World War I and the ensuing "Red Scare" in the name of national
security. So our early history has eerie echoes in the current milieu.
In that light, it's chilling to read one line in that 1921 letter about the
volumes of ACLU records Baldwin was then transmitting. He wrote: "I
feel as if we ought to apologize for the condition of these volumes. It
is due to the fact that they have been roughly handled, having been sent to
Washington for a Senate Committee investigation and to the Lusk Committee in
New York State ...." Let me just remind you that both of these committee
investigations, ominous precursors of the infamous McCarthy Committee during
the Cold War, were examining suspected "radical" groups that were
simply exercising their First Amendment rights or, in the ACLU's case, simply
defending the First Amendment rights of others! Yet these government
committees charged that this constituted criminal sedition!
Now, more than three-quarters of a century later, we again face government
accusations that standing up for civil liberties is somehow seditious. Recall
John Ashcroft's infamous statement three months after the 911 attacks. He
said that we civil libertarian critics are "only aid[ing] terrorists" and "giv[ing]
ammunition to America's enemies."
I say "we" advisedly, because Mr. Ashcroft made that charge while
testifying before the Senate Judiciary Committee. And I had testified
before that same Committee shortly before he did.
This reminds me of a headline last summer in one of my favorite publications, "The
Onion":
"Bush Asks Congress for $30 Billion to Help Fight War on Criticism"! In
the same vein, another recent "Onion" headline warned: "NEW
Patriot Act Makes It a Crime to Read OLD Patriot Act"! Well, most
members of Congress won't have to worry, since they admitted that they didn't
read the PATRIOT Act before voting for it!
Speaking of the PATRIOT Act brings me back to that 1921 letter setting up
the ACLU's initial archives, because it raises another distressing parallel
to our current situation. Just as the government commandeered ACLU records
during the early 20th century Red Scare, now, in the 21st century, the government
could again commandeer our records—along with any other records.
Now, though, that can be done in secret, without any notice to the
organization or anyone else.
Under the PATRIOT Act's notorious Section 215, government agents can demand
that the current holder of the ACLU archives, Princeton University, give them
secret access to all of our records—and Princeton would have no opportunity
to challenge that demand, nor would the ACLU ever know about it.
Before I say any more about this sinister use of our archival materials,
I want to talk more about their positive, intended use by historians,
journalists, and other individuals. The ACLU archives are the most frequently
used at Princeton, and they have been widely praised for their accessibility. I
would like to take this opportunity to thank the archivists who are or have
been responsible for the ACLU archives at Princeton, all of whom are participating
in this conference: Paula Jabloner, former Princeton ACLU Project Archivist,
now Archivist at the Computer History Museum in Mountain View, California;
Dan Linke, Princeton University Archivist and Curator of Public Policy Papers;
Ben Primer, Associate University Librarian for Rare Books and Special Collections
at Princeton University; and Tom Rosko, former Archival Assistant in
New York and Princeton for the ACLU Project, and now the head of the Institute
Archives and Special Collections at MIT.
As a frequent user of the ACLU's archives myself, I'd like to convey my deepest
thanks to the ACLU's superb archivist, Janet Linde, who is here today and who
will also be making a presentation at this meeting.
Further solidifying the ties between the ACLU and SAA, I was delighted to
learn last week that SAA has just decided to present a significant award to
the ACLU's new Assistant Archivist, Catherine O' Sullivan! You have chosen
Catherine as the winner of SAA's Theodore Calvin Pease Award for a paper whose
name alone sounds award-worthy to me: "Diaries, Online Diaries,
and the Future Loss to Archives; or, Blogs and the Blogging Bloggers who Blog
Them."
It's great to have Catherine on board at the ACLU, along with Janet. And
I'd also like to thank the ACLU's former Assistant Archivist, Teresa Mora,
who is now the NAACP Project Archivist at The Bancroft Library, University
of California at Berkeley.
Janet Linde is the kind of activist archivist who is becoming increasingly
important, as we see increasing overlaps between your professional issues and
issues of general public concern. This morning Tim told us, "We
need to be more outspoken as individual activists." He also extolled "the
ethic of activism." I was delighted to read on your Web site that "Advocacy
in the public policy arena has become an increasingly important trend for SAA's
leadership." Accordingly, I'd like to brag about the ACLU's "own" archivist
as a role model.
Last fall, the Archivists Round Table gave Janet an award for her tireless
efforts to regain public control of the mayoral records of Rudolph Giuliani's
administration, which Giuliani had sought to give to a private entity. Working
on her own time, Janet helped to draft and enact a major new public records
law for New York City that ensures public control over public officials' records. This
law is now being used as a model for other cities and states.
Janet's achievements as an activist archivist lead directly to the topic that
SAA leaders asked me to stress today, building on Tim's enlightening presentation: How
this important organization, and all of you as its members, can raise your
influential voices to counter the government's unjustified post-911 assaults
on the rights of your constituents—the individuals who donate and use
archival records.
To quote Tim's fine column in the March/April 2004 issue of Archival Outlook: "In
becoming more active, we will improve the visibility that all of us agree archivists
now lack." I had a graphic demonstration of the woeful public ignorance
about your fine profession right after checking into this hotel last night. I
rode up in the elevator with several other hotel guests. One of them
asked me whether I knew what group was holding a conference here. I said, "The
Society of American Archivists." His immediate response: "What's
an archivist?" I gave him the definition (which I knew because I'd
studied your Web site!). His sarcastic response, though, was: "Sounds
like a real party! Let's do it to the Dewey Decimal System!"
So, yes, archivists should be more visible and more outspoken, including for
the benefit of members of the public who are ignorant of your important work
for the ultimate good of all!
In a nutshell, what we've been seeing in recent years—particularly in
the aftermath of the 9/11 terrorist attacks—is a complete reversal of
the appropriate relationships among government, individuals, and records that
both of our organizations champion. We believe that individuals should have
free access to records about our government, but that government should not have
free access to records about us as individuals. Of course there are qualifications
and exceptions. Government is entitled to keep some if its records secret
and to get some records about us. But the general presumption is
as I stated it, and the government should bear the burden of overcoming that
presumption. It should specifically justify any effort to keep records
from us or to get records about us.
Tim has given you an excellent overview of the government's violation of that
first core records principle—that is, government openness—and I've
already given you some further examples specifically from the post-911 context. In
my brief time here, I can only touch on some of the most important issues and
strategies as to that second core principle—the government's responsibility
to respect our records privacy—and how each of you, drawing on your professional
expertise as an archivist, can assist in the vital effort to rein in the government's
rampant violations.
I urge you also to attend the more in-depth workshop session this afternoon
devoted to this topic. The lawyer who will be speaking on that panel,
Harvey Silverglate, is a long-time ACLU colleague and friend of mine, and a
great expert on these issues.
Let me start with the two provisions in the USA PATRIOT Act that were singled
out in SAA's excellent statement, issued on July 15, calling on Congress to
revise that Act: Section 215, which I've already mentioned, and Section
505. As SAA's statement explains, Section 215 allows federal agents
to examine archival records merely by certifying to a secret court that the
records are "sought for" an intelligence or terrorism investigation. Section
505 allows agents to see archival records without any judicial oversight. As
the SAA statement notes, both sections replace "the normal system of judicial
checks and balances...by secret procedures that cannot be challenged."
Now let's take a closer look at each of these two dangerous provisions.
The first, Section 215, is probably the most controversial provision in the
entire PATRIOT Act. It allows the government to seize even the most personal
records about any of us, even if we aren't suspected of any illegal
activity, let alone terrorism. As long as the government asserts that
the records are sought for an intelligence investigation, it may seize the
records, even if the judge believes that the government is just on a fishing
expedition. Moreover, the record holder must turn over the records. It
has no opportunity to challenge the government's seizure. Worse yet,
Section 215 imposes a gag order on the record holder, making it a crime to
tell anyone about this government seizure, including the person or group whose
records have been seized. Section 215 applies to "any tangible thing," including
any records whatsoever, even those concerning such private matters as book-buying
or borrowing, finances, health, and Internet communications (email and Web
surfing).
The particular application of this wide-ranging power that has raised the
most public concern is in the context of public libraries (thanks to the outstanding
activism by your professional librarian colleagues). The fact that librarians
have been such hell-raisers on this issue is, of course, completely contrary
to stereotypes about their profession that I now know (thanks to my elevator
encounter last night) apply to archivists, too. I actually came across
a post-PATRIOT Act listserve for "feisty librarians." A typical
post on it boasted: "The old stereotype of librarians as meek maidens
whose only passion is for the Dewey Decimal System is now being shattered for
good, replaced by a new image of librarians as feisty fighters for freedom." Right
on! And it's so good to know that you archivists increasingly are fighting
right alongside the librarians, and along with other civil libertarians! The
PATRIOT Act equally endangers your professional values and your ethical
commitments to your donors and patrons. So I look forward to a
future Web site for Feisty Archivists, too! Actually, SAA's own Web site contains
plenty of pertinent information, and this conference will also provide you
with even more information—and inspiration—to galvanize all you
activist archivists!
PATRIOT Act Section 215 obviously violates the privacy rights of individuals
whose records are revealed without the traditional constitutional safeguards—namely,
a judge finding that there is probable cause to believe that any such individual
has committed a crime or will do so. In addition, Section 215 violates
free speech rights of access to information. After all, who wants to
read materials in a library or an archive, knowing that the government could
be reading over your shoulder? Furthermore, this Section violates due
process rights, because it doesn't afford a chance to challenge its infringements
of privacy and freedom.
For all these reasons, last summer, the ACLU brought a constitutional challenge
to Section 215, which, I'm proud to say, was the first constitutional challenge
to any section of the PATRIOT Act. The case is still pending. An
excellent friend of the court brief was filed in support of our challenge by
a group of free speech organizations, including the American Library Association.
In the future, with your organization's increasingly activist orientation,
it would be most helpful if SAA could also sign on to such briefs.
Let me mention some other proactive stances that librarians have taken in
response to PATRIOT Act Section 215 that might also serve as models for similar
action by archivists. First, many librarians have posted signs to warn
their patrons about the government's new powers. What could be more appropriate
for librarians and archivists? After all, you are information providers! So
it surely behooves you to provide information to those who access your materials
about the potential consequences of that access. One of my favorite warning
signs that some librarians have posted would be completely a propos for
any archive as well. I'll read it to you, just substituting "archive" where
the original refers to "library":
"Although [this] [archive] makes every effort to protect your privacy,
under the ... USA PATRIOT Act, records of the ... materials you [use] from
this [archive] may be obtained by federal agents. That federal law prohibits
[archival] workers from informing you if federal agents have obtained records
about you. Questions about [this] policy should be directed to: Attorney
General John Ashcroft."
Various librarians also have adopted strategies for holding compliance with
Section 215's gag order to the bare minimum that is absolutely necessary to
honor the law. Again, these strategies could also be used by archivists. The
idea is to obey the legal bar on telling anyone that you've turned over archival
records to the government, but to comply in a way that still gives as much
information as possible to your clientele—consistent with your professional
mission as information providers. For example, one suggested sign says,
in very large print, "THE FBI HAS NOT BEEN HERE." Under that,
in very small print, it adds this cautionary note: "Watch very closely
for the removal of this sign."
A similar strategy is followed by the director of the Santa Cruz Public Library,
Anne Turner. A newspaper story quoted her as follows:
"In my standard [monthly] oral report to the [library] board, I say we've
not been contacted by the FBI in the last month. The month I don't say
it, the board will know I have been contacted [even though] I'm not allowed
to tell them [that]."
Other librarians are adjusting their records policies, not generating as many
records as they used to or disposing of them more quickly, including by regular
shredding. As long as the records have not yet been requested by government
agents, these approaches are completely lawful. I recognize that record
retention issues may differ somewhat between archivists and librarians, so
these particular strategies might have to be modified for your profession. One
constructive suggestion was contained in a letter to the SAA Council from several
SAA sections last fall. It read:
"While libraries recommend deleting patron records as soon as an item
is returned, for security reasons many archival institutions keep patron records...[to]
allow staff to check who last used a collection in case of theft or damage....
[M]any [archivists] believe the security concerns outweigh the potential breach
of patron confidentiality....[I]t is recommended that archivists alert potential
researchers that their record of collection use may be subject to disclosure
under the USA PATRIOT Act."
Even beyond the extent to which librarians' strategies provide models for
archivists, we all owe a debt of gratitude to librarians for their energetic
activism, which has mobilized many members of the public, press, and politicians
to resist Section 215's overreaching. This widely publicized librarian
resistance put John Ashcroft on the defensive in a way that even the ACLU could
not—thanks to the very different public images of librarians, in contrast
with ACLU lawyers! So, in this context, those annoying stereotypes about
librarians and archivists are actually helpful!
This point was made well by Margaret Talbot in a terrific piece in the New
York Times Magazine last fall. Once more, the points she makes
about librarians are, I think, completely applicable to archivists as well. She
wrote:
"Attorney General Ashcroft... [apparently] regards the librarians as
peskier opponents than the A.C.L.U., which conservatives have long felt free
to sneer about. Librarians, by contrast, are sort of like nurses and
firefighters: they're among the friendly `community helpers.' So, while
mocking the librarians' opposition as hysterical, Ashcroft has also made a
point of saying that they have been `misled'"—presumably by the
ACLU, which is repeatedly denounced on the Justice Department's Web site,
I'm proud to say!
Consistent with this greater respect that the Attorney General has shown toward
librarians—in contrast with the rest of us civil libertarians—it
was noteworthy that he personally called ALA President Carla Hayden last fall
to announce, with great fanfare, that Section 215 had never yet been used against
libraries. But note that he said "yet." We don't know
whether it has been used against libraries or archives in the 11 months since
then.
Indeed, in the ACLU's lawsuit challenging Section 215, the government has
insisted that it must retain the power to conduct this secret surveillance,
and it has also refused to provide any information about to what extent it
has already used that power, including in libraries or archives. In general,
it has been almost impossible for anyone to get any information about how the
government has actually used its secret surveillance powers post-911, including
even broad statistical information.
Not only has the government stonewalled all Freedom of Information Act requests
from the public, but it also has stubbornly refused to provide information
to Congress, making it impossible for Congress to fulfill its oversight responsibilities
on the public's behalf. Even conservative Republican members of Congress
have complained bitterly about this Administration's unprecedented unwillingness
to share information with them. One example is Tim's Congressman (whom he mentioned),
James Sensenbrenner (R-WI), the Chair of the House Judiciary Committee. Sensenbrenner
said that in his quarter-century in Congress, he had never seen such stonewalling,
even when the Presidency and the Congress were under the control of different
political parties (as they are not now). Chairman Sensenbrenner had to
threaten to serve the Justice Department with a subpoena to get even the most
basic statistical information about how the Department is using its sweeping
new surveillance powers.
Although we have received too little information about how the government
is using its "sweeping" new surveillance powers (to quote John Ashcroft),
the information that we have managed to piece together from some court-ordered
responses to some of the ACLU's FOIA requests suggests that the government
has indeed been accessing library records under some asserted power,
perhaps under PATRIOT Act Section 505.
Before I turn to that even more sinister section, let me make one more point
about Section 215.
Despite his claim last year that he hadn't needed to invoke that section against
libraries, Attorney General Ashcroft has led the charge against any effort
to repeal or even modify that section, specifically in the library or archival
context. As you know, just last month, the House Republican leadership
just barely managed to kill an amendment that would have thwarted the use of
Section 215 in libraries and archives—the aptly named "Freedom to
Read" measure sponsored by Independent Vermont Congressman Bernie Sanders. The
Republican Leadership accomplished this coup only by violating its own procedural
rules[1] and only under threat
of a Presidential veto of the whole multi-billion dollar budget act that this
modest measure would have amended.[2] (I say "as you know" because it was this manipulated
vote that prompted SAA's excellent statement expressing concern about the PATRIOT
Act.)
As an activist, I have to be an optimist, and I do see the glass as
half full in this situation. We came close to ending use of Section 215
in libraries and archives, with significant bipartisan support. This
is typical of votes we've seen in Congress in the past couple of years. Indeed,
Congressional efforts to cut back on the PATRIOT Act's unjustified excesses
are being led by some of the most conservative Republicans as well as some
of the most liberal Democrats. Commenting on the recent hijacked vote, one
conservative Republican, Idaho Congressman Butch Otter, put it this way: "You
win some, and some get stolen."
In short, despite John Ashcroft's limited disclaimer last fall that we shouldn't
worry about Section 215 being used in libraries and archives because it hadn't yet been
used in that context, despite the Attorney General telling us that we had nothing
to worry about, we do have lots to worry about! As Congressman
Sanders put it: "[T]he way you prevent federal agents from abusing
unnecessarily broad powers is to make sure they don't have unnecessarily broad
powers."
I urge SAA and all of its members to help us achieve that goal: To cut
back on the unnecessarily broad powers the government now has under
the PATRIOT Act. Please join not only Bernie Sanders, not only the ACLU
and the ALA, but also the extremely diverse individuals and groups, from all
across the political spectrum, who are supporting the bi-partisan reform bill
known as "SAFE," or "Security and Freedom Ensured." It
would amend Section 215 and a few other unjustified provisions in the PATRIOT
Act to restore constitutional checks and balances. For more details about
SAFE, and about any aspect of the ACLU's Safe and Free Campaign, please visit
our award-winning Web site at aclu.org. It's a treasure-trove of not
only information, but also tools for empowerment. It makes it so easy
for you to communicate with your elected officials on all of these issues and,
therefore, to really make a difference.
* * *
In my rapidly waning time, let me now turn to the second major PATRIOT Act
provision that SAA's July 15 statement singled out as a matter of special concern
for all archivists: Section 505. Underscoring the natural alliance between
the ACLU and SAA, I'm happy to report that, just as the ACLU has brought a
constitutional challenge to Section 215, we also have brought a constitutional
challenge to Section 505.
As you'll see when you visit our Web site, contrary to our usual policy, we
don't provide all of the litigation documents for this Section 505 lawsuit,
and those we do provide have been heavily blacked out. Here's a sample
page [link to pdf] from the government's latest brief. For those
of you in the back, you're not missing much: it's all blacked out! This
is the most graphic evidence of the excessive secrecy that the government has
employed in enforcing this dangerous provision.
It's too bad that Section 505 is not nearly as well known to the public as
Section 215, because it gives the government even more unchecked power to gain
secret access to our confidential records.
Section 505 expands the government's power to issue so-called "National
Security Letters," or "NSLs," under which it writes directly
to various record holders demanding that they secretly disclose records that
are sought for a terrorism investigation. No judge is involved at all.
The recipient of the letter must turn over the requested records, and must
not tell anyone it has done so.
Indeed, the government has interpreted Section 505's gag order, with its criminal
penalties, so expansively that when ACLU staff lawyers filed our constitutional
challenge to Section 505 last spring, including to its gag, they actually filed
the lawsuit under seal. And our lawyers had a hard fight with the government
just to get permission to tell anyone, including ACLU leaders, that
the lawsuit had been brought!
The lawsuit was filed on April 6, and it wasn't until April 28 that an alert
was sent to me and to other ACLU leaders letting us know about the lawsuit
and what we could, and could not, say about it. I'd like to read you
an excerpt from that Orwellian document, authored by the ACLU's outstanding
Associate Legal Director, Ann Beeson. Before I do so, though, I want
to warn you that, if you think Ann Beeson is paranoid in her warnings about
what we can and can't say without risking government prosecution, you should
know that after the government saw this document, it said we had gone too far
in saying even that much, and it dragged us back to court to tighten the gag
still further!
So here's a portion of Ann Beeson's April 28 memo to ACLU staff regarding "Restrictions
on Information Regarding ACLU v. Ashcroft , Our Legal Challenge
to the National Security Letter Power in the Patriot Act." The memo
first explains that the case was filed under seal to avoid violating the statute's
gag provision, which the Justice Department is construing extremely broadly. It
then continues as follows:
"The ACLU is now able to disclose certain redacted documents in the case
because, after negotiations, the government has agreed it will not prosecute
us for doing so. ....
"[Bolded language is bolded in original] However, there are still
certain questions about the case that the ACLU cannot answer due to the remaining
gag. It is imperative that you review this memo closely and use
only the scripted answers below in responding to [them]....Failure to
abide by the script below could put you, as well as National staff, at risk
of criminal prosecution for violating the gag.....
"We also strongly urge you to distribute this memo broadly to
all of your staff as well as to ACLU board members who speak publicly and to
the press about the Patriot Act. ...
"Of course, if you prefer not to put yourself at risk at all, you can
simply refer all questions about the case to [me]. If you have any questions
about this memo, please also feel free to contact me....Because of security
issues, please call rather than e-mail questions to us."
Can you believe this? That in our democracy, in the 21st century, it
could be a crime for a civil liberties lawyer to tell anyone about a lawsuit
that she has filed, under the U.S. Constitution, challenging a federal law
as violating fundamental constitutional rights? But it gets worse. Because
the ACLU lawyers issued that initial statement, it's been an ongoing struggle
to get the government to acquiesce in our posting of even redacted versions
of litigation documents. I had to consult with Ann Beeson personally to be
sure I could tell you even as much as I have told you about this lawsuit. And
Ann warned me that I should avoid answering any questions you might have about
this lawsuit if I want to avoid potential imprisonment—as I certainly
do!
So please understand why I won't entertain any such questions, and don't hold
that against me. But please do hold it against every government
official who voted for Section 505 and who refuses to join in efforts to repeal
or amend it. I should note that the American Library Association filed
an excellent friend of the court brief in support of our challenge to Section
505, stressing the special threat that it poses to libraries' patrons. The
same or similar concerns pertain to your patrons, too. So, again,
in the spirit of the increased activism that your leaders have encouraged,
I would like to stress how much we would welcome SAA's signing on to such briefs
in the future.
* * *
I'm almost out of time now, and I want to end on a positive note. That
great philosopher, Woody Allen, once came to the end of a speech and said to
his audience, "I really want to end with something positive. But
I can't think of anything positive to say. Would you settle for two negatives?" Well,
I really do have a positive message. All over the country, people are speaking
upÉ and standing upÉ and acting up with a positive impact on liberty and security. And
these people are truly a cross-section of our great country—Republicans
and DemocratsÉ liberals and conservativesÉ national security officials and
civil libertariansÉ and last, but very far from least, librarians and archivists!
I urge all of you at this important meeting of this important organization
and profession, to raise your influential voices. As my favorite ACLU
T-shirt proclaims: "You have the right NOT to remain silent"! In
light of John Ashcroft's infamous invective against civil libertarian critics,
I'd like to amend that slightly: "You have the patriotic duty not to remain
silent!"
Thank you very much.
Footnotes:
1. See 7/04 ACLU Press Release, "Freedom to Read Measure Narrowly Fails
in House; In Chaotic Vote, Congressional Republicans Violate House Rules." (Republican
leaders kept the vote open for 38 minutes—twice the allotted time—as
they sought to change votes. The measure initially garnered a majority
[219 to 201], but Republican leaders persuaded 11 members to switch their votes,
leading to a failed vote of 210 to 210.)
2. It was an amendment to a $39.8 billion bill financing the departments of
Commerce, Justice, and State for next year. Dan Moran and Charles Babington, "House
GOP Defends Patriot Act Powers," The Washington Post, July 9, 2004,
A01.
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