You Call That A Secret?

Plugging leaks with subpoenas

In October someone emailed the American Civil Liberties Union (ACLU) a four-page "information paper," dated December 20, 2005, that addresses "the permissibility of photographing enemy prisoners of war…and detainees in the Iraqi Theater of Operations." The document, which was labeled "SECRET" at the top and bottom of each page, was even less interesting than it sounds, but that did not stop the Justice Department from serving the ACLU with a grand jury subpoena demanding "any and all copies" of it.

The ACLU resisted the subpoena and, in a rare retreat by the Bush administration, got the Justice Department to back down, striking a blow against censorship, arbitrary secrecy, and abuse of the grand jury process. In its motion to quash the subpoena, the ACLU argued that the proper use of grand juries is to investigate crimes, not to prevent the dissemination of classified material. It said such an unprecedented use of a grand jury subpoena would be tantamount to a prior restraint on speech, which the U.S. Supreme Court says is permitted only to prevent "direct, immediate, and irreparable damage to our Nation or its people." Publicizing the unremarkable summary of military rules for photographing prisoners would not even come close to meeting that standard.

At a December 11 hearing, U.S. District Judge Jed Rakoff seemed inclined to agree with the ACLU. A week after that hearing and less than a month after serving the subpoena, the Justice Department decided to drop it, suddenly realizing "the grand jury can obtain the evidence necessary to its investigation from other sources." The document, deemed "secret" just a year before based on criteria that are hard to fathom, was declassified on December 15 for reasons equally mysterious.