For ACLU, A Victory In Standoff With U.S.

Federal prosecutors yesterday dropped their demand that the American Civil Liberties Union turn over all copies of a "secret" document the organization had obtained, after the government was roundly criticized for using a grand jury subpoena in an attempt to seize the material.

The government's unprecedented legal move demanded "any and all copies of the document" in an apparent attempt to keep the ACLU from using the information. It was part of a broader grand jury investigation into leaks of classified information that, in this case, included the Army directive about photographing enemy prisoners, federal prosecutors confirmed yesterday.

The ACLU hailed the government's retreat as a victory. "This was a legal standoff with enormous implications for free speech and the public's right to know, and today the government blinked," said ACLU Executive Director Anthony D. Romero. "The Bush administration's attempt to suppress information using the grand jury process was truly chilling and is unprecedented in law and in our history as an organization."

But the Justice Department said, in effect, that the ACLU had instigated the fight and had told the government that filing the subpoena would be the first step toward the ACLU turning over the document.

In a letter to U.S. District Judge Jed S. Rakoff of New York, prosecutors said the government issued the demand based on "what it believed to be the ACLU's representation, through counsel, that the ACLU was requesting a subpoena in lieu of voluntary cooperation."

Justice Department spokesman Brian Roehrkasse said the department had tried to handle the matter in a way that was as "amicable, cooperative and as unobtrusively as possible."

Charles S. Sims, who represented the ACLU in the case, called the government's contention "the most preposterous thing I've ever heard." He said it's "inconceivable" an ACLU lawyer would have ever requested the broad subpoena that the government issued.

The government's demand for "any and all copies of the documents" drew the ire of civil libertarians and newspaper editorial boards, which said federal prosecutors were going far beyond established precedents and were trying to suppress information rather than investigating who leaked the document.

The 3 1/2 -page document, which the ACLU had maintained would be only "mildly embarrassing" to the government, was an "information paper" prepared by a judge advocate for the 101st Airborne Division. It told soldiers not to photograph enemy prisoners of war and detainees.

The document is dated Dec. 20, 2005, more than a year after the military was scandalized by photos of prisoner abuse at Abu Ghraib in Iraq.

Romero said the documents "raise the question of whether the guidelines were in place prior to the Abu Ghraib scandal and if not, why it took more than a year after the scandal to issue a policy."

ACLU lawyer Sims said there was nothing in the document that ever should have been classified, and was indicative of the Bush administration's tendency toward secrecy.

A transcript of last week's closed hearing on the issue, unsealed yesterday, shows Rakoff skeptical of the government's use of a grand jury subpoena.

He said there is a "huge difference between investigating a wrongful leak of a classified document and demanding back all copies of it." He added that he was "old enough to remember a case called the Pentagon Papers," the Supreme Court decision that concerned prior restraint of publication of leaked government documents.

Staff writer Dan Eggen contributed to this report.