ACLU: Government seeks document marked 'secret' - AP

ACLU: Government seeks document marked `secret'
By LARRY NEUMEISTER
Associated Press Writer

December 13, 2006, 11:48 AM EST
NEW YORK -- The American Civil Liberties Union has asked a federal court to protect it from a grand jury subpoena demanding that the group give up a 2005 classified document that it says would be "mildly embarrassing" to the government.

The ACLU filed papers under seal in U.S. District Court this week seeking a judicial order letting it keep the 3{-page document, issued in December 2005.

The court papers, unsealed Wednesday, acknowledged that release of the document might be "mildly embarrassing" to the government but could not threaten national security.

The ACLU said the designation of the generally unremarkable document as classified "appears to be a striking, yet typical, example of overclassification."

The civil rights group said that it received the subpoena on Nov. 20 from the U.S. attorney's office in Manhattan, nearly a month after the ACLU received the document unsolicited.

ACLU Executive Director Anthony D. Romero said the subpoena served no legitimate investigative purpose and trampled on fundamental First Amendment rights.

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Anothy D. Romero
Executive Director, ACLU

Dear Friend,

This week, the ACLU asked a federal judge to quash a grand jury subpoena that demands that the ACLU turn over to the FBI “any and all copies” of a December 2005 government document in our possession.

You can read more about this case and our fight against the subpoena online.

I am writing to tell you about some breaking news of grave importance to the ACLU. Because it is going to be a big battle -- with fundamental principles at stake -- I wanted you to be the first to hear about it.

This week, the ACLU asked a federal judge to quash a grand jury subpoena that demands that the ACLU turn over to the FBI “any and all copies” of a December 2005 government document in our possession.

The three-and-a-half page document, issued in December 2005, is marked "Secret" and apparently is classified. We received the document, unsolicited, on October 23, 2006.

This attempt by the Bush Administration to suppress information using the grand jury process is truly chilling and is unprecedented in law and in our history as an organization. The 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 most significant thing about this legal face-off is not the content of the document, but the government’s unprecedented effort to suppress it. No official secrets act has yet been signed into law, and the grand jury’s subpoena power cannot be used to create one.

If the government can enforce a subpoena in this way, it could just as easily have subpoenaed the Pentagon Papers from The New York Times and The Washington Post. The effect of the subpoena is no different than a prior restraint and it is equally unconstitutional.

In the landmark Pentagon Papers case, the Supreme Court said that the government cannot seek to bar newspapers from publishing even classified documents unless the information would cause “direct, immediate and irreparable harm to our Nation and its people.”

While release of the document in this case might be mildly embarrassing to the government, our possession of it is legal and its release could in no way threaten national security. To the contrary, the designation of the document as “Secret” “appears to be a striking example of the Bush administration’s rampant use of claims of “state secrecy” and overclassification of documents and information to hide its actions.

As we note in our brief, many of the most important news articles of the past year (such as those concerning NSA eavesdropping, rendition of foreign prisoners of our nation to other nations, Defense Secretary Rumsfeld’s views on the deteriorating situation in Iraq, National Security Advisor Hadley’s assessment of Iraqi Prime Minister Maliki, and the report on the Iraq insurgency’s funding sources) have been based on classified docu ments leaked to reporters, which could not be prepared and published as they have been were the government allowed to use subpoenas to confiscate "any and all" copies of classified documents it learns are in the hands of journalists and other public advocates and critics.

You can read more about this case and our fight against the subpoena online.

The ACLU is no stranger to the government’s use of such tactics to try to silence their critics. You can rest assured that even with the full weight of the federal government pressing down on us, we will act with courage and conviction in the days ahead.

As in other historic ACLU efforts to defend freedom, our ability to stand firm in matters such as this is strengthened by the support from you and other ACLU members and activists.

Please stay closely attuned to developments in this serious matter and all of our other vital work to defend freedom.

Sincerely,

Anthony D. Romero
Executive Director
ACLU