Prosecutors Drop A.C.L.U. Subpoena in Document Fight
By ADAM LIPTAK
The New York Times
December 19, 2006
Federal prosecutors in New York yesterday withdrew a subpoena to the American Civil Liberties Union that had sought to retrieve all copies of a classified document.
In an opaque and defensive four-page letter to the judge in the case, the prosecutors said they were acting “in light of changed circumstances” and their determination that “the grand jury can obtain the evidence necessary to its investigation from other sources.”
Another factor may have played a role. A transcript of a closed hearing in the case that was unsealed yesterday suggested the government was going to lose.
Anthony D. Romero, the A.C.L.U.’s executive director, sounded jubilant in describing the development. “The government blinked in this standoff,” Mr. Romero said. The subpoena was unusual in that it sought not only to gather evidence but also to confiscate all tangible traces of the information in the document, apparently with the goal of preventing its distribution.
The document itself, declassified Friday and released by the A.C.L.U. yesterday, was not obviously confidential. An “information paper” dated Dec. 20, 2005, it was marked “secret” at the top and bottom of each of its four pages. The A.C.L.U. said it received the document in an unsolicited e-mail message in October.
The document collected a number of policies concerning photographs of enemy prisoners of war. Journalists, the document said, “are generally permitted, and to some extent even encouraged, to photograph” prisoners “from point-of-capture throughout the entire detainment process,” though they are discouraged from showing recognizable faces.
The document was dated almost two years after photographs of abuse at the Abu Ghraib prison in Iraq were first made public and during the debate over the Detainee Treatment Act, which included an amendment introduced by Senator John McCain prohibiting the cruel, inhumane or degrading treatment of detainees. President Bush signed the bill 10 days later.
A lawyer for the A.C.L.U. said that the document was potentially embarrassing, but that its release hardly endangered the national defense.
“If you read between the lines,” said the lawyer, Charles S. Sims, a First Amendment specialist at Proskauer Rose, “what it really says is that we want to exploit group photos of detainees.” The implicit instruction in the document, he said, was this: “If pictures of detainees can help sell the war, go for it.”
The effort to retrieve all copies of the document was a novel and, according to many legal experts, improper use of a grand jury subpoena. The subpoena cited a provision of the espionage laws that requires people in possession of some sorts of national security information to return it to the government if asked. But the A.C.L.U. said that the document at issue did not qualify and that, in any event, a subpoena was the wrong way to enforce the law.
In a transcript of a closed hearing in the case on Dec. 11 that was unsealed yesterday, Judge Jed S. Rakoff of Federal District Court in Manhattan seemed to indicate grave reservations about the tactic.
“What’s the authority for saying that a subpoenaed party can’t keep a copy of any document that they produced to the grand jury?” Judge Rakoff asked Jennifer G. Rodgers, an assistant United States attorney. Ms. Rodgers did not provide a direct answer, and yesterday’s letter withdrawing the subpoena did not address the question.
Later in the hearing, Judge Rakoff compared the situation to the Nixon administration’s effort to stop The New York Times and The Washington Post from publishing a secret history of the Vietnam War.
“There seems to be a huge difference,” Judge Rakoff said, “between investigating a wrongful leak of a classified document and demanding back all copies of it, and I’m old enough to remember a case called the Pentagon Papers.”
In yesterday’s letter, Ms. Rodgers suggested that the A.C.L.U. had set up the government, creating a fight that could have been resolved informally.
“The government has attempted to pursue its investigation and its request for the document at issue in as amicable, cooperative and unobtrusive a manner as possible,” she wrote. The A.C.L.U. filed a motion to quash the subpoena, she wrote, even though “the matter might be something the parties could negotiate without litigation, which always remained the government’s strong preference.”
In an interview, Mr. Sims said of Ms. Rodgers’s letter, “Virtually every factoid in that presentation is entirely false.”
Judge Rakoff, too, in last week’s argument, appeared unconvinced by the government’s contention that it thought the matter could have been resolved short of litigation.
“It’s not easy to believe,” Judge Rakoff said, “that the A.C.L.U., despite its history, would be cooperative. Well, hope springs eternal.”
Mr. Romero, the A.C.L.U.’s executive director, said the case would have a lasting impact. “It certainly helps the press and whistle-blowers to resist the strong-arm efforts of the government,” he said.
The New York Times
December 19, 2006
Federal prosecutors in New York yesterday withdrew a subpoena to the American Civil Liberties Union that had sought to retrieve all copies of a classified document.
In an opaque and defensive four-page letter to the judge in the case, the prosecutors said they were acting “in light of changed circumstances” and their determination that “the grand jury can obtain the evidence necessary to its investigation from other sources.”
Another factor may have played a role. A transcript of a closed hearing in the case that was unsealed yesterday suggested the government was going to lose.
Anthony D. Romero, the A.C.L.U.’s executive director, sounded jubilant in describing the development. “The government blinked in this standoff,” Mr. Romero said. The subpoena was unusual in that it sought not only to gather evidence but also to confiscate all tangible traces of the information in the document, apparently with the goal of preventing its distribution.
The document itself, declassified Friday and released by the A.C.L.U. yesterday, was not obviously confidential. An “information paper” dated Dec. 20, 2005, it was marked “secret” at the top and bottom of each of its four pages. The A.C.L.U. said it received the document in an unsolicited e-mail message in October.
The document collected a number of policies concerning photographs of enemy prisoners of war. Journalists, the document said, “are generally permitted, and to some extent even encouraged, to photograph” prisoners “from point-of-capture throughout the entire detainment process,” though they are discouraged from showing recognizable faces.
The document was dated almost two years after photographs of abuse at the Abu Ghraib prison in Iraq were first made public and during the debate over the Detainee Treatment Act, which included an amendment introduced by Senator John McCain prohibiting the cruel, inhumane or degrading treatment of detainees. President Bush signed the bill 10 days later.
A lawyer for the A.C.L.U. said that the document was potentially embarrassing, but that its release hardly endangered the national defense.
“If you read between the lines,” said the lawyer, Charles S. Sims, a First Amendment specialist at Proskauer Rose, “what it really says is that we want to exploit group photos of detainees.” The implicit instruction in the document, he said, was this: “If pictures of detainees can help sell the war, go for it.”
The effort to retrieve all copies of the document was a novel and, according to many legal experts, improper use of a grand jury subpoena. The subpoena cited a provision of the espionage laws that requires people in possession of some sorts of national security information to return it to the government if asked. But the A.C.L.U. said that the document at issue did not qualify and that, in any event, a subpoena was the wrong way to enforce the law.
In a transcript of a closed hearing in the case on Dec. 11 that was unsealed yesterday, Judge Jed S. Rakoff of Federal District Court in Manhattan seemed to indicate grave reservations about the tactic.
“What’s the authority for saying that a subpoenaed party can’t keep a copy of any document that they produced to the grand jury?” Judge Rakoff asked Jennifer G. Rodgers, an assistant United States attorney. Ms. Rodgers did not provide a direct answer, and yesterday’s letter withdrawing the subpoena did not address the question.
Later in the hearing, Judge Rakoff compared the situation to the Nixon administration’s effort to stop The New York Times and The Washington Post from publishing a secret history of the Vietnam War.
“There seems to be a huge difference,” Judge Rakoff said, “between investigating a wrongful leak of a classified document and demanding back all copies of it, and I’m old enough to remember a case called the Pentagon Papers.”
In yesterday’s letter, Ms. Rodgers suggested that the A.C.L.U. had set up the government, creating a fight that could have been resolved informally.
“The government has attempted to pursue its investigation and its request for the document at issue in as amicable, cooperative and unobtrusive a manner as possible,” she wrote. The A.C.L.U. filed a motion to quash the subpoena, she wrote, even though “the matter might be something the parties could negotiate without litigation, which always remained the government’s strong preference.”
In an interview, Mr. Sims said of Ms. Rodgers’s letter, “Virtually every factoid in that presentation is entirely false.”
Judge Rakoff, too, in last week’s argument, appeared unconvinced by the government’s contention that it thought the matter could have been resolved short of litigation.
“It’s not easy to believe,” Judge Rakoff said, “that the A.C.L.U., despite its history, would be cooperative. Well, hope springs eternal.”
Mr. Romero, the A.C.L.U.’s executive director, said the case would have a lasting impact. “It certainly helps the press and whistle-blowers to resist the strong-arm efforts of the government,” he said.
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