Plugging Leaks With Subpoenas


The American Civil Liberties Union is challenging a federal grand jury subpoena that demands "any and all copies of a document marked 'Secret,' dated 12/20/05, with the heading 'Information Paper' that was received by the ACLU on or about October 23, 2006." The ACLU says public release of the three-and-a-half-page document, which it received unsolicited, "could in no way threaten national security," although it might be "mildly embarrassing" to the Bush administration. Judging from hyperlinks on the ACLU's Web site, the "Information Paper" has something to do with torture, but the ACLU has agreed not to disclose the details until there's a ruling on its motion to quash the subpoena. "The designation of the generally unremarkable document as 'Secret' appears to be a striking, yet typical, example of overclassification," it says. In any case, the ACLU argues, grand jury subpoenas, which are supposed to serve an investigative function, are an inappropriate means of recovering classified documents and have never before been used that way.

"No official secrets act has yet been signed into law, and the grand jury's subpoena power cannot be used to create one," says 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 use subpoenas to order the return of leaked documents, Shapiro says, "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 [from that of] a prior restraint, and it is equally unconstitutional." Floyd Abrams, the First Amendment attorney, seems to agree, but Chapman University law professor John C. Eastman tells The New York Times that, assuming the document is properly classified, "the government is bending over backwards to accommodate the ACLU rather than pulling the trigger in prosecuting them."

Whether or not the government could or should prosecute the ACLU for publishing information from the document (or The New York Times for publishing, say, information about the National Security Agency's warrantless eavesdropping), this does seem like an abuse of grand jury subpoenas. Even if the Justice Department were investigating the ACLU (which the ACLU says it is not), there would be no need to seek "any and all copies" of the classified document. That demand indicates that the goal is to prevent further disclosure of the information, not to decide whether criminal charges are appropriate.


NEXT: What to Get Me for Christmas

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The ACLU will undoubtably be needing some financial assistance for this one. Giver generously.


    Cracker’s Boy

  2. OK, what’s the difference between an Officials Secrets Act and the language “

  3. Yeah, I think I’ll have to get out the checkbook.

    I wish they’d just publish the bloody thing. It’s time some of this shit saw the light of day.

    On the other hand, I suppose they probably think that playing by the rules increases the legitimacy of their victories. Can’t say I disagree at the intellectual level but emotionally I think it sucks.

  4. Help me with this one. If the document was legally classified as secret, and the ACLU knowingly publishes it, how can the ACLU not be guilty of some breach of the law?

    We don’t get to pick and choose which laws we follow, without suffering some consequence.

    Especially since even the ACLU claims the content is “no big deal.”

  5. bubba, where did you sign the agreement to not look at “Secret” documents. I don’t recall seeing that come up as part of legislation, nor did I sign a non disclosure agreement.

  6. If the document was legally classified as secret, and the ACLU knowingly publishes it, how can the ACLU not be guilty of some breach of the law?

    I believe the “law-breaker” is the person who leaked knowingly provided the document to the ACLU, not the ACLU for receiving the document.

    Please correct me if I am wrong in that belief.

  7. who leaked knowingly provided

    should read:

    who knowingly provided

    Preview is my friend…
    Preview is my friend…
    Preview is my friend

  8. Your right, ChicagoTom, and if government wants to keep things classified as “Secret” away from the public, it incumbent upon them to prevent the disclosure to parties outside of government. Once such information has been leaked, they should not be able to criminalize further propagation of that information.

    Granted, like Jacob said, this is a prior restraint issue, but the same principal applies. Of course, if the ACLU does publish this information, I’m sure there is a law somewhere that will declare them co-conspirators or some equal nonsense, which is probably why the ACLU is proceeding with caution on this.

  9. You’re also right about preview. I’m embarrassed about at least three mistakes I made in that last post.

  10. jf,
    Of course, in the interest of “National Security” the government may suppress information, hence the ACLU’s statement that the document was “generally unremarkable” and “could in no way threaten national security”.

  11. Oh, and for all you folks out there who think that the ACLU are godless heathens based on thier stance regarding the separation of church and state:

    ACLU of New Jersey Applauds Ruling in Favor of Student’s Right to Sing “Awesome God”

  12. Kwix,

    I wish that the ACLU had balls as big as grapefruits, so they could just tell the government to sod off and publish the info anyway.

    That is to say, I wish they were the bogeymen the conservatives consider them to be. Let the government try them in court and prove that this information must be suppressed in the interest of “national security”.

    Worst case scenario is that the government gets the court proceedings to be completely secret, which should wake up a few more people to the fact that our government has too much control over the flow of information in this country and start demanding change.

    Maybe Pelosi has her swamp-draining machine ready and can help us on this. I won’t hold my breath, though.

  13. jf,
    One can only hope.

  14. I’m not generally a big fan of the ACLU, but I’m glad *someone* is investigating the government’s activities and trying to find out what’s really going on.

    If this works out, maybe more organizations will arise, dedicated to investigating and discovering information about governmental activity, especially information which the government doesn’t want to publicize. Maybe these organizations will have employees with a sense of professionalism who are devoted to uncovering such information with all the resourcefulness they can muster. We could call these employees “journalists.”

    Why hasn’t someone (besides *Reason,* the ACLU and a handful of others) thought of this idea before?

  15. Does this mean that 13 year olds can start bringing criminal charges against each other when Heather tells Johnny that Britney likes him?

  16. It’s edifying to read the comments of people who are obviously more erudite in the law than I am.

    To me, this looks like a case of prior restraint. I agree that once the government fails to keep its own secret document secret, that’s tough shit. I also agree with Mad Max’s sarcastic call for journalism to be employed in this country. (E.g., does anyone here really think Dubya would not have invaded Iraq if the intelligence had dictated so?)

    What everyone overlooked, however, is the statement that the document would be “mildly embarrassing” to the Bush administration.

    Is it possible to embarrass the Bush administration?

  17. That was supposed to read, what’s the difference between an Official Secrets Act, and the language from Chapter 793(e) that the ACLU quotes in the footnote?

  18. My comments about journalism were not limited to investigating the Bush administration, but any government policy at any time. I mean, obviously *someone* is watching the shows where reporters interview actors in movies about to be released by their joint employer’s entertainment arm, but might there not also be interest in governmental affairs? And those who *do* investigate governmental affairs should perhaps run stories which involve more than just “Interest group issues press release” (usually phrased differently and run uncritically, e. g., “Penalties for eating trans fat are too lenient, report says” over a story about a press release by the Center for Science for a Nanny State).

  19. This is the sort of thing Freenet was developed for. It’s a decentralized, distributed, anonymous, peer-to-peer file sharing network. If whoever leaked the documents had put them there first (even in a obfuscated manner, eg. with a nonsense filename and description) it would be impossible to provide “any and all copies”. The documents would exist there for as long as people wanted to read them.

    What is Freenet?
    Freenet is free software designed to ensure true freedom of communication over the Internet. It allows anybody to publish and read information with complete anonymity. Nobody controls Freenet, not even its creators, meaning that the system is not vulnerable to manipulation or shutdown.

  20. The ACLU is right, this is beyond the scope of what a Grand Jury can do. This should be over fast. But when it comes to justice, I’m not a betting man.

    “””Help me with this one. If the document was legally classified as secret, and the ACLU knowingly publishes it, how can the ACLU not be guilty of some breach of the law?”””

    This should be moot because a Grand Jury does not have the power to force them to turn it over. However, I would say “legally” is the operative word. I would think that there are criteria to what can be classified.

    Certainly the American public has a right to know what the President is doing in our name to a point. Which side of the point does this document fall? That’s a big question that no one here can answer unless we get to review it. It may be easy to assume but none of us know.

    Whatever it is, the President should never be able to classify something just because it’s embarrassing.

Please to post comments

Comments are closed.