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U.S. Gets Subpoena to Force ACLU to Return Leaked Memo

By Dan Eggen
Washington Post Staff Writer
Thursday, December 14, 2006

Federal prosecutors are demanding that the American Civil Liberties Union turn over all copies of a secret document it has obtained, in what is apparently the first time a criminal grand jury subpoena has been used in an attempt to seize leaked material, the ACLU and legal experts said yesterday.

Prosecutors obtained the subpoena Nov. 20, saying their demand was part of an investigation into an alleged violation of the Espionage Act of 1917.

The ACLU says that the 3 1/2 -page document contains no information that should be classified and that the memo is only "mildly embarrassing" to the government. Some legal scholars said the case bears similarities to events in the "Pentagon Papers" case more than three decades ago.

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, 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.

Officials at the Justice Department in Washington referred questions about the case to the office of U.S. Attorney Michael J. Garcia in New York. A spokeswoman there confirmed the subpoena but declined to comment further.

First Amendment advocates and experts in national security law said the subpoena represents a dramatic bid by the government to punish or intimidate media organizations and advocacy groups that attempt to publicize government policies and actions.

Lucy Dalglish, executive director of the Arlington-based Reporters Committee for Freedom of the Press, called the subpoena "disturbing," saying it would be easy for the government to attempt a similar move against a news outlet that had obtained a sensitive document as part of its investigative work.

"It shows me a pattern of aggressiveness to retrieve information that has escaped from the bubble," Dalglish said. "It's intimidation. It's trying to use all sorts of different methods at their disposal to stop proliferation of leaks from the federal government and to prevent public oversight of the executive branch."

William C. Banks, a law professor at Syracuse University and co-author of a leading textbook on national security law, compared the subpoena to a telegram sent in 1971 by then-Attorney General John N. Mitchell to the publisher of the New York Times, warning that publication of a leaked report on the Vietnam War violated the Espionage Act and demanding the return of the Pentagon Papers to the Defense Department.

"It's the same kind of scare tactics, it seems to me," Banks said, adding that he doubts the judge would enforce the subpoena because previous court rulings appear to support the ACLU's position.

The government is pursuing a series of leak investigations related to alleged violations of the Espionage Act and other laws governing the protection of classified information. These include a probe into the disclosure of a warrantless-surveillance program operated by the National Security Agency and the prosecution of two former employees of a pro-Israel lobbying group for allegedly violating the espionage statute.

ACLU officials said that they were told they were not the targets of the probe and that prosecutors had made clear they knew the identity of the person who had provided the group with the memo. Executive Director Anthony D. Romero told reporters that the organization has no idea how the government learned it had the memo.

The ACLU says in its brief that the document was sent as an unsolicited e-mail on Oct. 23 and that the e-mail and one printed copy of the document have been isolated pending litigation. The document is stamped "secret" and contains the heading "Information Paper," according to the subpoena.

The subpoena was issued after the ACLU refused a verbal demand from Assistant U.S. Attorney Jennifer G. Rodgers to turn over all copies of the memo, the group said. Despite the government's keen interest in the document, Romero said, the document does not appear to be particularly important or damaging.

"The government has made this document much more newsworthy now than it perhaps was at first blush," Romero said.

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