December 18, 2006
The Bush administration has come up with a new weapon in its arsenal of secrecy: the use of a grand jury subpoena to demand not just one copy but all copies of a leaked document, in this case 3 1/2 pages e-mailed this fall to the American Civil Liberties Union.
Ordinarily, subpoenas are issued to force an unwilling person or organization to provide evidence needed in an investigation or trial. By requiring the ACLU to provide all copies, the administration clearly hopes to stop the ACLU from publishing the contents of the e-mail. The ACLU even believes the administration already knows who the leaker is -- suggesting the subpoena is intended for another purpose. Judge Jed S. Rakoff of the federal district court in Manhattan should quash the government's action.
No one is supposed to say what the document, which was unsolicited, is about, but the ACLU says that it "has nothing to do with national defense" and would be only "mildly embarrassing" to the administration. Clearly, the administration has lit on this one instance of many leaked documents to see if it can use a subpoena for "any and all" copies of a revealing memo or report to keep the media and organizations like the ACLU from divulging its contents.
In the Pentagon Papers case during the Vietnam War, the Nixon administration tried to suppress publication, but the US Supreme Court said that would be prior restraint of the press. The justices set a very high standard for the harm that publication would have to cause to justify prior restraint: it would have to be "direct, immediate, and irreparable to our Nation or its people." There is no evidence yet that publication of the contested document would have such a dire effect. The ACLU argues that the document has no information about troop movements, intelligence sources, or communication methods.
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