This time around the Justice Department is trying to use a subpeona to force the ACLU to turn over all copies of a classified document that it has in its possession. Legal experts say it is the first time a subpoena has been used in an attempt to seize leaked documents.
From the Washington Post:
The ACLU says that the 3 1/2 -page document contains no information that should be classified and that the memo is only "mildly embarrassing" to the government....
In a motion filed in federal court, the ACLU called the subpoena an "unprecedented abuse" of the government's grand-jury powers that violates the First Amendment and is aimed at suppressing information rather than investigating a crime.
The civil liberties group -- which has been sharply critical of the Bush administration's terrorism and detainee policies -- said it is prohibited from disclosing the contents of the document. But it described the document as "nothing more than a policy, promulgated in December 2005, that has nothing to do with national defense."
"No official secrets act has yet been enacted into law, and the grand jury's subpoena power cannot be employed to create one," the ACLU wrote in its brief, which was filed with U.S. District Judge Jed S. Rakoff.
First Amendment advocates and experts in national security law said the subpoena represents a dramatic bid by the government to punish or intimidate media organizations and advocacy groups that attempt to publicize government policies and actions.
Lucy Dalglish, executive director of the Arlington-based Reporters Committee for Freedom of the Press, called the subpoena "disturbing," saying it would be easy for the government to attempt a similar move against a news outlet that had obtained a sensitive document as part of its investigative work.
"It shows me a pattern of aggressiveness to retrieve information that has escaped from the bubble," Dalglish said. "It's intimidation. It's trying to use all sorts of different methods at their disposal to stop proliferation of leaks from the federal government and to prevent public oversight of the executive branch."