Thursday, December 14, 2006

Feds Trying New Tactic Against Leaks

Federal prosecutors are trying to force the American Civil Liberties Union to turn over copies of a classified document it received from a source, using what legal experts called a new extension of the Bush administration’s efforts to protect national-security secrets.

The novelty in the government's approach is in its broad use of a grand jury subpoena, which is typically a way to gather evidence, rather than to confiscate all traces of it. But the subpoena issued to the A.C.L.U. seeks "any and all copies" of a document e-mailed to it unsolicited in October, indicating that the government also wants to prevent further dissemination of the information in the document. ...

The subpoena, however, raised the possibility that the government had found a new tool to stop the dissemination of secrets, one that could avoid the all but absolute constitutional prohibition on prior restraints on publication.

The disputed document, according to the A.C.L.U., is three-and-a-half pages long and unremarkable, and its disclosure would be only mildly embarrassing to the government.

The subpoena issued in the Southern District of New York provides the latest example of the Justice Department's aggressive use of the anti-spying law (the Espionage Act of 1917), a broadly worded and little-used statute that has become the bedrock in a series of leak-related investigations by the Bush administration.

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.

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