Unprecedented Grand Jury Subpoena Seeks to Confiscate Document; ACLU Files Motion to Quash in New York Court
NEW YORK - The American Civil Liberties Union today announced that it has asked
a federal judge to quash a grand jury subpoena demanding that it turn over to
the FBI "any and all copies" of a December 2005 government document in its
possession.
The ACLU called the subpoena, served on November 20 by
the U.S. Attorney's office in New York, a transparent attempt to intimidate
government critics and suppress informed criticism and reporting.
"The government's attempt to suppress information using the grand
jury process is truly chilling and is unprecedented in law and in the ACLU's
history," said ACLU Executive Director Anthony D. Romero. "This subpoena serves
no legitimate investigative purpose and tramples on fundamental First Amendment
rights. We recognize this maneuver for what it is: a patent attempt to
intimidate and impede the work of human rights advocates like the ACLU who seek
to expose government wrongdoing."
The three-and-a-half page
document, issued in December 2005, is marked "Secret" and apparently is
classified. The ACLU received the document, unsolicited, on October 23,
2006.
In legal papers, the ACLU said that while release of
the document might be "mildly embarrassing" to the government, the ACLU's
possession of it is legal and its release could in no way threaten national
security. To the contrary, the ACLU said, the designation of the generally
unremarkable document as "Secret" "appears to be a striking, yet typical,
example of overclassification."
According to the ACLU's
papers, the document concerns matters of public interest that "relate to issues
of longstanding concern to the ACLU and on which the ACLU is actively engaged in
ongoing public advocacy." Until the court rules on the release of the document,
the ACLU has agreed not to release it or disclose its contents.
"No official secrets act has yet been signed into law, and the
grand jury's subpoena power cannot be used to create one," said ACLU Legal
Director Steven R. Shapiro. "The most significant thing about this case is not
the content of the document but the government's unprecedented effort to
suppress it."
If the government can enforce a subpoena in
this way, Shapiro explained, "it could just as easily have subpoenaed the
Pentagon Papers from The New York Times and Washington Post. The effect of the
subpoena is no different than a prior restraint and it is equally
unconstitutional."
In the landmark Pentagon Papers case, the
Supreme Court said that the government cannot seek to bar newspapers from
publishing classified documents - an unconstitutional legal tactic known as
prior restraint - unless the information would cause "direct, immediate and
irreparable harm to our Nation and its people."
As the ACLU noted
in its brief, which was filed under seal on Monday and unsealed by court order
today: "Many of the most important news articles of the past year (such as those
concerning NSA 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, which 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 of journalists and other public advocates and
critics."
Although the subpoena refers to the Espionage Act, the
ACLU has been told that it is not a target of the investigation. "The ACLU
is not a target for investigation because we have done nothing wrong," said the
ACLU's Romero. "It is the government that is in the wrong when it abuses
its power and attempts to silence its critics."
The case is
In re Grand Jury Subpoena Served on the ACLU, filed in the U.S. District Court
for the Southern District of New York before presiding Judge Jed S.
Rakoff. The ACLU is represented by Shapiro of the ACLU, Charles S.
Sims and Emily Stern of Proskauer Rose LLP and Joshua L. Dratel and Erik B.
Levin, of Joshua L. Dratel, P.C., all of New York.
The ACLU’s Motion to Quash is online at: www.aclu.org/safefree/27648lgl20061211.html
The grand jury subpoena that was issued to the ACLU is at: www.aclu.org/safefree/torture/27652lgl20061120.html
Declarations regarding facts in the case were also filed by ACLU Executive Director Anthony Romero at www.aclu.org/safefree/torture/27649lgl20061211.html, ACLU Senior Corporate Counsel Terence Dougherty at www.aclu.org/safefree/torture/27651lgl20061211.html and attorney Joshua Dratel. They are online at: www.aclu.org/safefree/torture/27650lgl20061211.html