ACLU Challenges Government Attempt to Seize "Secret" Document
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
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