Does the Bush Regime still think it can do as it pleases?
Michael J. Garcia, the United States attorney in Manhattan.
[I found the below article here on the web]
U.S. Subpoena Is Seen as Bid to Stop Leaks
Federal prosecutors are trying to force the American Civil Liberties Union to turn over copies of a classified document it received from a source, using what legal experts called a new extension of the Bush administration’s efforts to protect national-security secrets.
The novelty in the government’s approach is in its broad use of a grand jury subpoena, which is typically a way to gather evidence, rather than to confiscate all traces of it. But the subpoena issued to the A.C.L.U. seeks “any and all copies” of a document e-mailed to it unsolicited in October, indicating that the government also wants to prevent further dissemination of the information in the document.
The subpoena was revealed in court papers unsealed in federal court in Manhattan yesterday. The subject of the grand jury’s investigation is not known, but the A.C.L.U. said that it had been told it was not a target of the investigation.
The subpoena, however, raised the possibility that the government had found a new tool to stop the dissemination of secrets, one that could avoid the all but absolute constitutional prohibition on prior restraints on publication.
The disputed document, according to the A.C.L.U., is three-and-a-half pages long and unremarkable, and its disclosure would be only mildly embarrassing to the government. It added that the document “has nothing to do with national defense.”
“The government may be wanting to have its cake and eat it, too,” said Rodney A. Smolla, the dean of the University of Richmond’s law school. “It may want to present this to the court as not carrying heavy First Amendment implications. But to the extent the government wants to prevent the A.C.L.U. from disclosing the content of the document by virtue of this subpoena, it is a prior restraint.”
John C. Eastman, a law professor at Chapman University, disagreed, saying that the subpoena was unusual but not improper and a sign of a moderate approach to a significant problem.
“Assuming it’s properly classified,” Professor Eastman said of the document, “I actually think the government is bending over backwards to accommodate the A.C.L.U. rather than pulling the trigger in prosecuting them.”
“I’m not troubled by the fact that when we’re dealing with classified documents there may be action taken to retrieve them,” he added.
The A.C.L.U. said the subpoena was an effort to chill speech about the Bush administration. “The government is involved in a very conscious effort to suppress its critics,” said Anthony D. Romero, the A.C.L.U.’s executive director.
Lauren McDonough, a spokeswoman for Michael J. Garcia, the United States attorney in Manhattan, declined to comment beyond acknowledging the A.C.L.U.’s filing.
In the past, the government has fired and prosecuted government officials who provided classified information to people not authorized to have it. It has also tried to force reporters and others to identify the government officials who leaked to them.
But the Supreme Court has drawn the line at efforts to restrain or punish the dissemination of truthful information about matters of public concern.
The Bush administration has been particularly vigilant in trying to keep its secrets. It has threatened, for instance, to prosecute reporters for publishing classified information.
The A.C.L.U.’s lawyers said in court papers filed Monday that such subpoenas, if upheld by the court, would pose a direct threat to journalists.
“Many of the most important news articles of the past year (such as those concerning N.S.A. eavesdropping, rendition of foreign prisoners of our nation to other nations, Defense Secretary Rumsfeld’s views on the deteriorating situation in Iraq, National Security Advisor Hadley’s assessment of Iraqi Prime Minister Maliki, and the report on the Iraq insurgency’s funding sources) have been based on classified documents leaked to reporters,” the group’s motion said.Those articles, the motion continued, “could not be prepared and published as they have been were the government allowed to use subpoenas to confiscate ‘any and all’ copies of classified documents it learns are in the hands journalists and other public advocates and critics.”
Experts in First Amendment law said that political advocacy groups like the A.C.L.U. are entitled to the same constitutional free speech-protections that journalists receive.
“In this case,” said Floyd Abrams, a First Amendment lawyer, “the A.C.L.U.’s function is presslike” in that it collects, analyzes and disseminates information about the government.
In its motion to quash the subpoena, the A.C.L.U. said, “The document is nothing more than a policy, promulgated in December 2005.”
It added, “The document contains no information concerning matters such as troop movements, communications methods, intelligence sources or the like.”
The group’s lawyers have agreed for now not to disclose the contents of the document, but hyperlinks to the papers posted yesterday on its Web site include the word “torture.”
The identity of the source is known to both the A.C.L.U. and the government, the organization’s lawyers said. The A.C.L.U. declined to name the source.
In November, Jennifer G. Rodgers, a federal prosecutor, called the A.C.L.U. and demanded the return of the document and all copies, according to court documents. She knew the date on which it had been e-mailed to the group, court papers say.
A subpoena followed. The A.C.L.U. moved to quash it, and Judge Jed S. Rakoff of the Federal District Court in Manhattan yesterday ordered the unsealing of the organization’s filings and the subpoena itself. The judge will rule on the motion to quash shortly.
The Espionage Act makes it a crime for people who have unauthorized possession of some kinds of national security information to receive, retain, disseminate or refuse to turn it over to the government when asked. But A.C.L.U. lawyers say the document does not meet the statute’s definition and that, in any event, a subpoena is an improper way to enforce the law.
In its filing, the A.C.L.U. also argues that the government is misusing the grand jury that issued the subpoena.
“Despite extensive research,” the motion to quash says, “we have been unable to find a single reported decision even mentioning, much less enforcing, a subpoena purporting to preclude the subpoenaed party from retaining a copy of subpoenaed documents. There is no possible argument that there is an investigative purpose to such a subpoena.”