Press Release 12/13/06

From the Desk of Anthony D. Romero
Executive Director, ACLU

Dear Friend,

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

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.

Anthony D. Romero
Executive Director