It was only one battle among many between the government and civil liberties advocates. But in this round, at least, the ACLU won the day and even made the Justice Department look a little silly.
Yesterday, the Justice Department abruptly gave up its battle for a classified document, which they’d sought to confiscate from the ACLU through the unusual means of a criminal subpoena (which is usually used to obtain evidence, not confiscate all traces of it). Why’d they give up? Well, it appears they were going to lose anyway… and lose badly.
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.
