US subpoenas ACLU, ACLU fights back ~

[babylonsister]

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 docu­ments 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.

http://www.aclu.org/safefree/torture/27647prs20061213.html

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

[SlipperySlope]

1. They should make sure all ACLU members receive a "backup copy"

They should make sure all ACLU members receive a "backup copy". As long as they only send it to members, they are just circulating it internally and not publishing it, huh?

[Mikey929]

18. Stamps

I was in the Post Office yesterday and saw a sight that troubled me. I thought of the ACLU. The Post Office is selling Christmas stamps, not just Frosty and Rudolph, but ones that have a picture of Mary and the baby Jesus. That is about as Christian as you can get. I think that this is too much. A government post office, selling stamps of the virgin mary and jesus. If this is not endorsement of religion, I don't know what is.

Government is supposed to be neutral on religion. Read the Constitution! I felt like I was in church yesterday and was not amused. Government and church are not to be mixed in any way. Just give me my stamps with some snow and a nice country scene, and don't try to indoctrinate me and my kids with your dogma.

The ACLU should look into this.

[Norquist Nemesis]

19. Seen those, but they don't bother me anymore than the ones

that are for recognition of military, breast cancer, etc. There's also Hanukkah, Kwanzaa, and Eid stamps. People aren't required to buy one stamp over another. :shrug:

I am a little surprised that Dennis Prager, Michael Savage, and Glenn Beck haven't started hollering at the tops of their lungs about the Eid stamp, though.

USPS Holiday Stamps

Eid Stamp

[Mikey929]

20. reason

Thanks for the note of reason. Sometimes I guess I overreact. I see this awful government trying to push its R-wing backwards fundamental religion on us everywhere we turn, and I guess I just saw red yesterday when I saw the virgin mary in a government building. I don't think the government should be selling purely religious items.

I almost bought those EID stamps to put on the cards to send to my fundie relatives in West Virginia. But they probably would have called the FBI on me when they saw the "strange" markings on the card. LOL

Man, sometimes this whole world just makes me want to scream

[bananas]

2. k&r nt

[Poll_Blind]

3. Please K & R! n/t

PB

[hwmnbn]

4. I sense big legal confrontations......

in the coming months. From this case to the congressional subpoenas, who will blink first?

As with watergate, the ramifications for our country are immense.


K&R

[cascadiance]

5. Had an earlier thread on this...

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=2651291&mesg_id=2651291

[Dragonbreathp9d]

6. Here's a good way to fight it.... PUBLISH IT!!!!!

[Poll_Blind]

7. Kick! n/t

PB

[Bjorn Against]

8. Yes, I think I hope this one gets leaked onto the internet

I don't know what it says, but my guess is that it is probably something that needs to come out for people to judge for themselves on.

[Tanner_B.]

16. Yep

Fuck 'em. If they're that guarded about it, it must be something We The People need to see. So let's see it !

[Jack Rabbit]

9. Thank you for keeping us informed

!!

[bonito]

10. Keep kicked!

[pberq]

11. Kick & Nominated

[Maraya1969]

12. Can some anonymous person please leak it onto the internet?

[Jeffersons Ghost]

13. K&R YOU GO GIRL! thanks for your patriotism...

:yourock:

[donheld]

14. K & R

People must see this.

[roguenkatz]

15. Here's an idea...

As an act of appreciation for all the ACLU has done for him about his battles with the government on privacy issues, enlist the assistance of Rush Limbaugh to be the first to break the story in the media.




Oh yeah, right.

[libodem]

17. I love the ACLU

:kick:

[cascadiance]

21. This subpoena is about covering up torture memos:

Another DU thread today on this:
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=364&topic_id=2918402

A couple of more items in more depth from emptywheel over at The Next Hurrah:

From:
http://thenexthurrah.typepad.com/the_next_hurrah/2006/12/first_they_came.html

December 14, 2006

First They Came After Journalists, Then They Came After the ACLU

by emptywheel

I've been thinking a lot lately about First Amendment arguments--and have been perhaps fairly accused of credulity regarding the ability of our government to exercise discretion with regards to subpoenas regarding secret information. Ideally, the government would only prosecute leaks in cases where it claims someone deliberately hurt national security (as with the AIPAC leak and the Plame leak) but not in cases of whistle-blowing, where a leak reported illegal behavior on the part of the government. But this is the Bush White House, and really, no one should give them the benefit of the doubt. I'll grant you that.

I did so, however, partly because our great institution of journalism is no less corrupt, at this point, than our great institution of an independent judiciary. We're ceding those in the government who want to use the press for their own arbitrary attacks a whole lot of leeway if we go after the problem solely by protecting journalists. Furthermore, I think we will get into trouble if we invest our First Amendment rights solely in journalists, and not more generally in the principle of Free Speech, which really depend on defending the underlying principles, not the journalists themselves.

And we now have an example of why this is important. The Bush Administration is trying to use a subpoena to force the ACLU to return all copies of a document, relating to torture, that it received in October.

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.

First, some details about what's going on, best as I can tell. The government already knows who gave the ACLU this document, and when, so they don't need the document to prosecute this person (certainly not all copies of the document). We can presume the document relates to torture because the location the ACLU has put its references to this case--under "safe and free" > "torture"--on its website. The document is marked "secret," and the ACLU has been told it is classified. Thus far, the ACLU hasn't published the document.

The guidelines regarding this document are clear, according to the ACLU. It doesn't say this, but presumably if that person who gave them the document is bound by security clearance guidelines, the government could (I suppose) prosecute that person or take away their security clearance. But the document itself should fall under the decision of the Pentagon Papers, which prohibits the government from preventing the publication of classified documents that don't "cause direct, immediate, and irreparable harm to our Nation or its people." Again, according to the ACLU, this document will do no more than cause mild embarrassment.

But what the government wants to do is get its torture document back--and it's using a subpoena to do so, presumably because there is no restriction about having a classified document in one's possession.

...

From:
http://thenexthurrah.typepad.com/the_next_hurrah/2006/12/the_pentagon_to.html

December 14, 2006

The Pentagon Torture Papers

by emptywheel

Just a follow-up to my post on the ACLU subpoena. The ACLU http://www.aclu.org/images/asset_upload_file251_27648.pdf">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 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.

Larisa Alexandrovna also talks about this as well in addition to how the government is going after Truthout in a similar fashion in their efforts to prosecute Ehren Wataba:

From:
http://www.atlargely.com/2006/12/military_indust.html

December 14, 2006
Military Industrial Complex goes after TruthOut and ACLU
We are in deep trouble when our military can overtly threaten journalists and watchdog organizations by simply claiming privilege of some sort. The military has no privileges that are more important than the Constitution. Every government organization and structure is subservient to the principles and laws on which this country was founded, which is why they take an oath to uphold and defend that foundation. So why are they so set on destroying that which has power over them? Or is the answer precisely in that question?

The latest two events should send a chill down your spine. First up, the ACLU:

link - WASHINGTON -- 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 a number of legal specialists said yesterday.

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

You read that right. The ACLU, an organization solely created for the purpose of protecting the Bill of Rights, is being threatened with the Espionage Act for doing nothing illegal whatsoever, nor revealing anything that would endanger this country (not, like for example, starting an illegal war against Iraq and declaring the Crusades officially afoot).

...

DU discussion thread on this from Larisa here:
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=364&topic_id=2921971