U.S. Subpoena Is Seen as Bid to Stop Leaks - New York Times
The New York Times

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December 14, 2006
U.S. Subpoena Is Seen as Bid to Stop Leaks
By
ADAM LIPTAK

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."

Copyright 2006
The New York Times Company

Posted by Miriam V.