The test of whether an official is worthy of power is how he exercises it when the law shuts out public scrutiny. Connecticut U.S. Attorney Kevin O'Connor failed that test in 2005 when he thought no one was looking at his abuse of the USA Patriot Act. His own incompetence, however, allowed light to shine on his battle in the shadows against four upright Connecticut librarians.
The U.S. Senate can take a stand for individual liberty by rejecting President Bush's nomination of O'Connor to a high-ranking position in the Justice Department that includes overseeing the enforcement of civil rights.
In July 2005, Library Connection, a cooperative of 26 Connecticut libraries, received a national security letter from the FBI under the authority of the Patriot Act. The letter sought records from a computer used by a library patron.
The national security letter delivered to the head of Library Connection warned that the law prohibited him from speaking of it to anyone. In the normal course of seeking information, the government is required to apply for a warrant from a judge. The Patriot Act altered that protection in the name of fighting terrorism.
The librarians, represented by the American Civil Liberties Union, challenged the law in federal court without revealing their identities in public. The government, represented by O'Connor, fought them. To his dismay, the librarians won, convincing Judge Janet C. Hall that the order violated their First Amendment rights, a rare successful challenge of the Patriot Act. O'Connor appealed and was able to gag the librarians while the case went forward.
Keeping the identities secret had to be essential for national security, or the Patriot Act wouldn't apply. But in September 2005, it became clear that the librarians' names weren't very important to O'Connor after all. He failed to competently redact documents the court ordered released, revealing the identities of the gagged librarians. Having revealed what he insisted must remain secret for the sake of the nation, O'Connor still pursued the case.
During the appeal, O'Connor justified his continuing the fight against the now-identified librarians by telling The New York Times, "You can't just think about this particular case."
It's his duty, however, to consider the individual case. These were citizens, not symbols. He is no guardian of civil rights.
Blurring O'Connor's blunders replaced protecting national security as the purpose of the government's case. O'Connor's ignoring the law he tried to enforce against the librarians had exposed him to hoots of derision. The librarians testifying before Congress while it debated the law would compound his troubles. Appealing the case kept the librarians gagged.
Changes made in the Patriot Act in 2006 allowed the government an excuse to withdraw its appeal. The gagged librarians never got a chance to testify before Congress acted.
But a churlish O'Connor was not done. He aimed a slur at the vindicated librarians, accusing them of "celebrating the fact that you prevented the government from investigating a potential terrorist threat." A threat, the government announced, that "ultimately was without merit."
O'Connor had foreshadowed his taste for mixing law enforcement and political ambition in a letter he had sent to Washington Republican operative Ron Kaufman at the beginning of the George W. Bush administration, seeking help in snagging the U.S. attorney job in Connecticut. He saw the job as a gate to higher office: "Simply put, there is no better position for me to occupy before a statewide run for office than United States Attorney," he wrote. Senators may want a copy of that letter. It reveals more about O'Connor than the 50-page questionnaire he provided the committee. If members of the Senate really do worry about shrouded abuses that occur under the Patriot Act, this is the time to prove it. The Judiciary Committee holds a hearing on O'Connor's nomination Tuesday. It can punish, not promote, an official who engaged in an abuse of his office while claiming the nation's security was at risk.
Sens. Dianne Feinstein and Russell Feingold, committee members, have tried to prevent the Patriot Act being turned into a weapon to bludgeon citizens seeking shelter in the Constitution. Connecticut's Sen. Christopher Dodd has yet to take a stand on O'Connor's nomination. Opposing it with some vigor will defeat it.
Support for fundamental rights spans the political spectrum. Last week, conservative radio maestro Rush Limbaugh, who knows something about aggressive prosecutors, told his audience, "Defending liberty takes leadership and guts." Show us some.
Originally published in The Hartford Courant