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.