Grand jury subpoenas the ACLU

ACLU Challenges Government Attempt to Seize "Secret"
Document (12/13/2006)

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

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