Bush Admin squeezes ACLU to turn back time on leak

I don't usually do breaking news diaries, but this new story in tomorrow's New York Times is one you should read.  The Bush Administration is misusing the tool of a grand jury subpoena to force the ACLU to return all copies of a classified document that was leaked to it.  If they can make this technique work here, they can theoretically put a stop to embarassing leaks of government corruption by making the recipient erase all evidence from their memory banks -- or else go to jail for contempt.

Update: Airpower notes in a comment that one reason for this move, other than to turn back time so that the leak never occurred, is to pursue the hope that one of the copies helps track down the leaker.

More thoughts below.

Adam (I'm not Nagourney!") Liptak reports:

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 was revealed in court papers unsealed in federal court in Manhattan yesterday. The subject of the grand jury’s investigation is not known, but the A.C.L.U. said that it had been told it was not a target of the investigation.

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. It added that the document "has nothing to do with national defense."

"The government may be wanting to have its cake and eat it, too," said Rodney A. Smolla, the dean of the University of Richmond’s law school. "It may want to present this to the court as not carrying heavy First Amendment implications. But to the extent the government wants to prevent the A.C.L.U. from disclosing the content of the document by virtue of this subpoena, it is a prior restraint."

I think that that uses up all of my fair use rights (and I'll trim this down upon request.)

Ths ACLU has filed a motion to quash with Judge Jed Rakoff (a well-respected judge in Manhattan) asking that the subpoena be quashed.  The motion reads:

Despite extensive research, we have been unable to find a single reported decision even mentioning, much less enforcing, a subpoena purporting to preclude the subpoenaed party from retaining a copy of subpoenaed documents. There is no possible argument that there is an investigative purpose to such a subpoena.

What this means:

The government is engaging in what seems like patent abuse of the grand jury system.  In these investigations, one is supposed to be able to find out what informaiton the other side has.  One is not supposed to be able to take that information away from them entirely.  This is particularly critical when the topic is leaks of documents that may show government wrongdoing that may be classified to prevent embarrassment and to impede legitimate investigations.

The winged monkeys slaving away in Bush's Office of Legal Counsel are always on the lookout for ways that they can twist the Constitution and our other laws to their self-perpetuating ends.  We've just found out about another one here.  Judge Rakoff is a smart guy; we can only hope that he can figure out the implications and reject them.

What this also means:

The ACLU is fighting your battles for you.  Losses in cases like this could completely change the operation of our legal system, our press, and our government.  Do you support them?