Justice Department Heads Off Legal Battle With ACLU
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The Justice Department has headed off a First Amendment battle with the American Civil Liberties Union by dropping a grand jury subpoena demanding that the group turn over all copies of a document the government said was classified.
The government also declassified the disputed document, which had been marked “secret” but turned out to be a seemingly innocuous directive relating to photography of battlefield detainees by the press and military personnel.
“It has nothing to do with national defense. It’s media policy,” an attorney representing the ACLU, Charles Sims, said in an interview. The four-page document, which the ACLU said it received unsolicited via e-mail in October, appears to have been drafted by military lawyers at the 101st Airborne Division in Fort Campbell, Ky.
Mr. Sims speculated that the memorandum was classified because it indicates that service members are generally banned from photographing detainees, but under some circumstances members of the press are encouraged to photograph those who have been captured. “The fact they are using detainees as a media opportunity to plug the war is embarrassing and shameful,” he said.
After the government subpoenaed “any and all copies” of the document last month, the ACLU filed a motion to quash in federal court. The group argued that a grand jury subpoena was an improper vehicle to, in essence, erase records from the ACLU’s files.
The government’s decision to relent may have been influenced by comments the judge assigned to the case, Jed Rakoff, made at a hearing last week. “There seems to be a huge difference between investigating a wrongful leak of a classified document and demanding back all copies of it,” the judge said, according to a transcript unsealed yesterday. “I’m old enough to remember a case called the Pentagon Papers.”
A federal prosecutor, Jennifer Rodgers, said the subpoena was a valid way to investigate what was done or might be done with the document.
“If we were to receive from them in compliance with the subpoena, 1,000 photocopies of this classified document that they had in their possession, then it’s possible that that would change the focus of the grand jury investigation to look at what they were planning to do with these documents,” she told the judge. In earlier discussions, the prosecutor said the ACLU was not a target of the grand jury but could be violating the Espionage Act or a law that protects so-called communications intelligence.
In a letter to the court yesterday, Ms. Rodgers suggested that the ACLU was eager to turn the dispute into a court fight and filed the legal motion even though she was willing to extend the deadline on the subpoena while the two sides negotiated. The prosecutor also indicated that an attorney for the ACLU indicated that officials at the group disagreed on whether to challenge the subpoena.
Ms. Rodgers did not indicate how the detainee photography policy came to be stamped “secret.” She said an investigation is ongoing into “improper dissemination of classified and sensitive documents from a government agency,” which she did not identify.