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The New York Times<br>
December 14, 2006<br>
U.S. Subpoena Is Seen as Bid to Stop Leaks By ADAM LIPTAK<br><br>
Federal prosecutors are trying to force the American Civil Liberties
Union<br>
to turn over copies of a classified document it received from a
source,<br>
using what legal experts called a new extension of the Bush
administration's<br>
efforts to protect national-security secrets.<br><br>
The novelty in the government's approach is in its broad use of a grand
jury<br>
subpoena, which is typically a way to gather evidence, rather than
to<br>
confiscate all traces of it. But the subpoena issued to the A.C.L.U.
seeks<br>
"any and all copies" of a document e-mailed to it unsolicited
in October,<br>
indicating that the government also wants to prevent further
dissemination<br>
of the information in the document.<br><br>
The subpoena was revealed in court papers unsealed in federal court
in<br>
Manhattan yesterday. The subject of the grand jury's investigation is
not<br>
known, but the A.C.L.U. said that it had been told it was not a target
of<br>
the investigation.<br><br>
The subpoena, however, raised the possibility that the government had
found<br>
a new tool to stop the dissemination of secrets, one that could avoid
the<br>
all but absolute constitutional prohibition on prior restraints on<br>
publication.<br><br>
The disputed document, according to the A.C.L.U., is three-and-a-half
pages<br>
long and unremarkable, and its disclosure would be only mildly
embarrassing<br>
to the government. It added that the document "has nothing to do
with<br>
national defense."<br><br>
"The government may be wanting to have its cake and eat it,
too," <br>
said Rodney A. Smolla, the dean of the University of Richmond's law
school.<br>
"It may want to present this to the court as not carrying heavy
First<br>
Amendment implications. But to the extent the government wants to
prevent<br>
the A.C.L.U. from disclosing the content of the document by virtue of
this<br>
subpoena, it is a prior restraint."<br><br>
John C. Eastman, a law professor at Chapman University, disagreed,
saying<br>
that the subpoena was unusual but not improper and a sign of a
moderate<br>
approach to a significant problem.<br><br>
"Assuming it's properly classified," Professor Eastman said of
the document,<br>
"I actually think the government is bending over backwards to
accommodate<br>
the A.C.L.U. rather than pulling the trigger in prosecuting
them."<br><br>
"I'm not troubled by the fact that when we're dealing with
classified<br>
documents there may be action taken to retrieve them," he
added.<br><br>
The A.C.L.U. said the subpoena was an effort to chill speech about the
Bush<br>
administration. "The government is involved in a very conscious
effort to<br>
suppress its critics," said Anthony D. Romero, the A.C.L.U.'s
executive<br>
director.<br><br>
Lauren McDonough, a spokeswoman for Michael J. Garcia, the United
States<br>
attorney in Manhattan, declined to comment beyond acknowledging the<br>
A.C.L.U.'s filing.<br><br>
In the past, the government has fired and prosecuted government
officials<br>
who provided classified information to people not authorized to have it.
It<br>
has also tried to force reporters and others to identify the
government<br>
officials who leaked to them.<br><br>
But the Supreme Court has drawn the line at efforts to restrain or
punish<br>
the dissemination of truthful information about matters of public
concern.<br><br>
The Bush administration has been particularly vigilant in trying to keep
its<br>
secrets. It has threatened, for instance, to prosecute reporters for<br>
publishing classified information.<br><br>
The A.C.L.U.'s lawyers said in court papers filed Monday that such<br>
subpoenas, if upheld by the court, would pose a direct threat to<br>
journalists.<br><br>
"Many of the most important news articles of the past year (such as
those<br>
concerning N.S.A. eavesdropping, rendition of foreign prisoners of
our<br>
nation to other nations, Defense Secretary Rumsfeld's views on the<br>
deteriorating situation in Iraq, National Security Advisor Hadley's<br>
assessment of Iraqi Prime Minister Maliki, and the report on the
Iraq<br>
insurgency's funding sources) have been based on classified documents
leaked<br>
to reporters," the group's motion said.<br><br>
Those articles, the motion continued, "could not be prepared and
published<br>
as they have been were the government allowed to use subpoenas to
confiscate<br>
'any and all' copies of classified documents it learns are in the
hands<br>
journalists and other public advocates and critics."<br><br>
Experts in First Amendment law said that political advocacy groups like
the<br>
A.C.L.U. are entitled to the same constitutional free speech-
protections<br>
that journalists receive.<br><br>
"In this case," said Floyd Abrams, a First Amendment lawyer,
"the A.C.L.U.'s<br>
function is presslike" in that it collects, analyzes and
disseminates<br>
information about the government.<br><br>
In its motion to quash the subpoena, the A.C.L.U. said, "The
document is<br>
nothing more than a policy, promulgated in December 2005."<br><br>
It added, "The document contains no information concerning matters
such as<br>
troop movements, communications methods, intelligence sources or the
like."<br><br>
The group's lawyers have agreed for now not to disclose the contents of
the<br>
document, but hyperlinks to the papers posted yesterday on its Web
site<br>
include the word "torture."<br><br>
The identity of the source is known to both the A.C.L.U. and the
government,<br>
the organization's lawyers said. The A.C.L.U. declined to name the
source.<br><br>
In November, Jennifer G. Rodgers, a federal prosecutor, called the
A.C.L.U.<br>
and demanded the return of the document and all copies, according to
court<br>
documents. She knew the date on which it had been e-mailed to the
group,<br>
court papers say.<br><br>
A subpoena followed. The A.C.L.U. moved to quash it, and Judge Jed
S. <br>
Rakoff of the Federal District Court in Manhattan yesterday ordered
the<br>
unsealing of the organization's filings and the subpoena itself.
<br>
The judge will rule on the motion to quash shortly.<br><br>
The Espionage Act makes it a crime for people who have unauthorized<br>
possession of some kinds of national security information to
receive,<br>
retain, disseminate or refuse to turn it over to the government when
asked.<br>
But A.C.L.U. lawyers say the document does not meet the statute's
definition<br>
and that, in any event, a subpoena is an improper way to enforce the
law.<br><br>
In its filing, the A.C.L.U. also argues that the government is misusing
the<br>
grand jury that issued the subpoena.<br><br>
"Despite extensive research," the motion to quash says,
"we have been unable<br>
to find a single reported decision even mentioning, much less enforcing,
a<br>
subpoena purporting to preclude the subpoenaed party from retaining a
copy<br>
of subpoenaed documents. There is no possible argument that there is
an<br>
investigative purpose to such a subpoena."<br><br>
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