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Citing 1917 law, federal prosecutors pursue leak

Thursday, December 14, 2006

The Washington Post

WASHINGTON - Federal prosecutors are demanding 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 a bid to seize leaked material, the ACLU and legal experts said Wednesday.

Prosecutors said their demand was part of an investigation into an alleged violation of the Espionage Act of 1917.

The ACLU says the 3½-page document contains no information that should be classified and 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 30 years ago.



The subpoena provides the latest example of the Justice Department's aggressive use of the broadly worded and little-used statute that has become the bedrock of leak-related inquiries by the White House.

The government is pursuing a series of leak probes related to alleged violations of the Espionage Act and other laws governing classified information.

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ACLU is ordered to turn over copies of leaked document

Thursday, December 14, 2006

Dan Eggen

Washington Post

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 legal experts said Wednesday.

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 the 3½-page document contains no information that should be classified and the memo is only "mildly embarrassing" to the government.



The subpoena issued in the Southern District of New York provides the latest example of the Justice Department's 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 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.

Officials at the Justice Department's in Washington referred questions to the U.S. attorney's office in New York. A spokeswoman there confirmed the subpoena but declined to comment further.

Lucy Dalglish, executive director of the 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 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.

William 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 Mitchell to 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.