Subpoena First, Negotiate Later
The Justice Department has dropped its subpoena demanding "any and all copies" of a classified document that someone emailed to the American Civil Liberties Union in October. The ACLU had resisted the subpoena, arguing that release of the four-page document did not threaten national security and that, in any event, grand jury subpoenas are for collecting evidence, not for preventing the dissemination of classified material. You can judge for yourself whether the now-declassified "information paper," which addresses "the permissibility of photographing enemy prisoners of war and detainees," should have been classified to begin with. It says photographs "are generally permitted, even encouraged," as long as prisoners are "not displayed in any manner that might be interpreted as holding them up to public curiosity," in violation of the Geneva Conventions. "If you read between the lines," says an ACLU lawyer, "what it really says is we want to exploit group photos of detainees." In other words, he says, "If pictures of detainees can help sell the war, go for it." Which fits the ACLU's claim that the document, though potentially embarrassing, was not a threat to national security.
As for the propriety of using grand jury subpoenas to recover classified information, it seems the government was about to lose that argument. At a closed December 11 hearing, the transcript of which was unsealed this week, U.S. District Judge Jed Rakoff asked Assistant U.S. Attorney Jennifer Rodgers, "What is the authority for saying that a subpoenaed party can't keep a copy of any document that they produced to the grand jury?" He noted that "there seems to be a huge difference between investigating a wrongful leak of a classified document and demanding back all copies of it," adding, "I'm old enough to remember a case called the Pentagon Papers."
Rodgers suggested the squabble was an ACLU publicity stunt. "The government has attempted to pursue its investigation and its request for the document at issue in as amicable, cooperative and unobtrusive a manner as possible," she wrote. Instead of talking things over in an amicable, cooperative, and unobstrusive manner—which is what you'd expect the ACLU to do in response to an abusive, overreaching supoena—the group immediately filed a motion challenging it, even though "the matter might be something the parties could negotiate without litigation [or publicity], which always remained the government's strong preference." To recap: When the Justice Department tries to recover a document of dubious relevance to national security with an unpredented information-suppressing subpoena that is tantamount to a prior restraint on publication, and the ACLU files a motion to quash the subpoena, it's the ACLU that's jumping the gun.