In arguments before federal Judge Jed Rakoff December 11th, the transcript of which was just unsealed yesterday, the ACLU and Justice Department lawyers went back and forth about the subpoena. After DoJ lawyer Jennifer Rodgers explained that she'd sought to confiscate the document from the ACLU because it was "contraband," and had been told by an ACLU lawyer "that the ACLU, being the ACLU, wouldn't want to voluntarily give the documents back in cooperation with the government and would need some sort of process and I said what sort of process? How about a subpoena? He said that's fine, fax me a subpoena, which I did." Rodgers was then surprised when the ACLU fought the subpoena.
To this, Rakoff responded bemusedly:
... it's not easy to believe that the ACLU, despite its history, would be cooperative. Well, hope springs eternal .... there seems to be a huge difference 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, but, more generally I wonder what the authority is for using a grand jury subpoena for that purpose.
The Justice Department didn't have a good answer. And soon, the Pentagon declassified the document, allowing the DoJ to back away from the fight.
Update: You can read the document here.