ACLU Challenges Government Attempt to Seize "Secret" Document (12/11/2006)
Unprecedented Grand Jury Subpoena Seeks to Confiscate Document; ACLU Files Motion to Quash in New York Court Today
NEW YORK - The American Civil Liberties Union today announced that it has asked a federal judge to quash a grand jury subpoena demanding that it turn over to the FBI "any and all copies" of a December 2005 government document in its possession.
The ACLU called the subpoena, served on November 20 by the U.S. Attorney's office in New York, a transparent attempt to intimidate government critics and suppress informed criticism and reporting.
"The government's attempt to suppress information using the grand jury process is truly chilling and is unprecedented in law and in the ACLU's history," said ACLU Executive Director Anthony D. Romero. "This subpoena serves no legitimate investigative purpose and tramples on fundamental First Amendment rights. We recognize this maneuver for what it is: a patent attempt to intimidate and impede the work of human rights advocates like the ACLU who seek to expose government wrongdoing."
The three-and-a-half page document, issued in December 2005, is marked "Secret" and apparently is classified. The ACLU received the document, unsolicited, on October 23, 2006.
In legal papers, the ACLU said that while release of the document might be "mildly embarrassing" to the government, the ACLU's possession of it is legal and its release could in no way threaten national security. To the contrary, the ACLU said, the designation of the generally unremarkable document as "Secret" "appears to be a striking, yet typical, example of overclassification."
According to the ACLU's papers, the document concerns matters of public interest that "relate to issues of longstanding concern to the ACLU and on which the ACLU is actively engaged in ongoing public advocacy." Until the court rules on the release of the document, the ACLU has agreed not to release it or disclose its contents.
"No official secrets act has yet been signed into law, and the grand jury's subpoena power cannot be used to create one," said 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 enforce a subpoena in this way, Shapiro explained, "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 than a prior restraint and it is equally unconstitutional."