The Abu Gonzales Justice Department is using its expansive interpretation of the Espionage Act to try to get the ACLU to turn over a document that the ACLU was given in October. It's an instance utterly reminiscent of the Pentagon Papers (indeed, its efforts probably violate the SCOTUS Pentagon Papers ruling against prior restraint). Only this time, the government isn't even trying to prevent the ACLU from publishing the document--they just want their memo back.
Is the DOJ going after the ACLU to prevent it from revealing that it has been lying about its torture policy?
Most of the press coverage on this says little about the content of the document the government is after. But we can tell it relates to torture because that's where the ACLU has filed its report on this issue--right there in the midst of its extensive library on the Administration's use of torture.
The ACLU motion to quash the subpoena includes a good deal more on the document the government wants back. It appears that BushCo altered their torture policy in December 2005--and revelation of the fact that they did so--and how they did so--would be embarrassing enough they're willing to invent new rules to get that document back.
First, the motion provides a general description of the document.
On October 23, 2006, the ACLU received "over the transom" (i.e., without having solicited it) a three-and-one-half page document, marked "Secret," which provides a set of general policy guidelines on a matter of longstanding concern to the ACLU. Its date of promulgation also raises important questions. The ACLU did not release or otherwise disseminate the document upon receipt, and it has not done so since. However, the ACLU reserves the right to do so in the future, and retained the document for further consideration. Although the word "Secret" is printed as part of the text on each page, the document does not indicate by whom, or pursuant to what authority, the marking was made.
To support its argument that dissemination of the document does not qualify under the Espionage Act, the ACLU document provides more on its content.
As the Court will see when the government provides it a copy of the document sought by the subpoena, which we urge the government to submit or the Court to request that the government do so, the document is nothing more than a policy, promulgated in December 2005, that has nothing to do with national defense. Release of the document might perhaps be mildly embarrassing to the government, but the document contains no information concerning matters such as troop movements, communications methods, intelligence sources or the like. To the contrary, the document appears to be a classic example of overclassification.
In other words, the government doesn't want the ACLU to have it because it'll reveal how its policy on torture changed last December, not because it'll damage national security. And note the comment about the date in the first excerpt--apparently, the government did something in December of last year that it doesn't want you to know it did.
Finally, just before these two passages, the ACLU provides an extensive description of its advocacy against the Administration's abuses of power, including descriptions of its torture library, its case against Rummy and three military commanders for the US' abuse of four Aghans and five Iraqis, and its representation of whistleblowers on this issue and on extraordinary rendition.
Just by way of reminder, the Administration originally justified its torture policy using the Bybee Memo, which was written on August 1, 2002. Thanks to Sy Hersh, the Abu Ghraib scandal broke in April 2004. In an effort to "come clean" on torture, the Administration did a document dump--including the Bybee memo--on June 22, 2004 (Bybee was, by that point, already secure in his lifetime appointment to the Ninth Circuit Court of Appeals). Then, after BushCo won the election, they had to find a way to get Abu Gonzales approved by the Senate to be Attorney General. So in January 2005--12 months before this document was written--they effectively repudiated the memo. Kind of. Here's John Dean's description of what happened:
Of course, Gonzales was asked about the Bybee memo during his confirmation hearing. At first, he more or less embraced the memo.
Senator Leahy asked Gonzales if he agreed with the memo's definition of torture -- as requiring "organ failure, impairment of bodily function or even death." At first, Gonzales tried to dodge, answering, "Senator, in connection with that opinion, I did my job as counsel to the president to ask the question."
But ultimately, not only Senator Leahy, but almost every member of the committee, directly or indirectly quizzed Gonzales on the memo. Still, his position remained less than clear.
So near the end of the hearing, the committee's chairman, Senator Arlen Specter, tossed Gonzales a softball question to allow him to clarify his position: "Do you agree with the statement in the memo, quote, 'The Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield,' close quote?"
Specter --a skilled attorney and former prosecutor -- was plainly trying to rehabilitate his witness, and allow Gonzales to improve on his earlier half responses. Almost certainly realizing what the chairman was doing, Gonzales unhesitatingly responded, "I reject that statement, Senator."
By these words, then, Gonzales too repudiated the Bybee memo.
Click through and read the rest of Dean's analysis.
Call me crazy. But the fact that the Administration is using Pentagon Paper-like tactics to get this December 2005 policy back suggests that what they told us about their torture policy in January 2005 in order to get Abu Gonzales approved--and what really was their policy--may be two different things.
Major Danby did a post on the subpoena of the ACLU here.
Updated: It strikes me that the is one more topic this memo may relate to, given the timing: "Black Sites."
The key aspect is the timing of the memo: December 20, 2005. Well, Dana Priest's blockbuster article on Black Sites was published November 2, 2005. She continued to have A1 stories on the prisons throughout November and December--and by December the rest of the media was catching up to her. So if the government published a new policy on prisons on December 20, it would be a response to Priest's articles--after they had been denying the prisons for almost two months.
One more word on the timing.
The Military Commissions Act (otherwise known as the "Gut Habeas Act") was passed on October 17, 2006. Which means this document was sent to the ACLU just a week later. And, as you'll recall, just before that they gathered all the people who had been in these illegal prisons up into Gitmo just before that period, so they could "try" them and absolve themselves of legal implication. Then, DOJ finds out that ACLU has this document in late November (or they wait until after the election to pester the ACLU, same difference). Which is where we are now. If the document relates to the illegal prisons, it is quite possible BushCo is trying to clean up all evidence that they existed--and in which case their change of policy in December 2005 would be proof of what they changed their policy from.
Which would explain why they would use Pentagon Paper tactics to get this paper back--they want to stay out of jail themselves.
Update 2: I think jorndoff is narrowing in on what the document is with this comment:
Another 12/05 happening
...was the McCain anti-torture bill.
Reports that Bush wouldn't veto the bill look to have started on 12/15/05. Bush's presidential signing statement nullifying the detainee provisions in the bill occured on 12/30/05. The 12/20/05 memo could include the groundwork for the language later included in the signing statement.
The timing is perfect. And I do think it MORE LIKELY this is a torture bill, given where it is in the ACLU site.
Update: The timing is worse than perfect. Look at the timing.
Details on the military budget bill, to which the McCain Amendment was attached:
12/18/2005 Conference report H. Rept. 109-360 filed.
12/19/2005 Conference report agreed to in House: On agreeing to the conference report Agreed to by the Yeas and Nays: 374 - 41 (Roll no. 665).
12/21/2005 Conference report agreed to in Senate: Senate agreed to conference report by Voice Vote.
The policy document was written on 12/20/2005--the day after the conference report was approved in the House, before it was approved in the Senate.
Strike that--I think I've got the wrong appropriations bill.