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Subpoena SillinessThe feds overplay their hand against the ACLU.

By Jack Shafer
Posted Thursday, Dec. 14, 2006, at 5:51 PM ET

If the federal government could vaporize a leaked classified document by merely subpoenaing it from the leakees, a frisky U.S. Attorney would have already attempted it at some point in our nation's glorious history, don't you think?

They haven't, yet that's the strategy the feds have deployed against the American Civil Liberties Union, report today's (Dec. 14) New York Times and Washington Post. A federal grand jury subpoena is demanding the ACLU return a leaked three-and-a-half page document and "any and all copies."

According to Dan Eggen's Post story, prosecutors maintain their Nov. 20 subpoena is a legitimate part of their investigation into an alleged violation of the Espionage Act of 1917. The ACLU, which has been informed that it is not a target of the investigation, insists the leaked document shouldn't be classified in the first place and in court papers calls the information it contains only "mildly embarrassing" to the government. The ACLU's motion to quash the subpoena also notes, "Such a subpoena is unprecedented; so far as research reveals, not a single reported decision even mentions, much less enforces, any such subpoena.

Indeed, if reclaiming leaked classified documents were as simple a matter as issuing subpoenas, the Nixon White House could have easily accomplished its prior restraint ambitions and prevented the New York Times and Washington Post from publishing the Pentagon Papers by simply slapping the press with subpoenas. Yale law professor Jack M. Balkin accuses the government of being "sneaky" in his blog today, using subpoena power to censor citizens. He writes:

If the government's purpose is genuinely investigative, it cannot object to the ACLU retaining copies. But if its purpose is not investigative, but an attempt to suppress speech, it may not abuse the subpoena power for this purpose.

The leaking and publication of sensitive government documents is as old as the republic, according to Mark Feldstein, a professor of journalism at George Washington University. "Federalist newspapers published verbatim secret treaties and confidential cabinet minutes," Feldstein writes. Editors published the private letters of President James K. Polk and his secret drafts of treaties, which Polk found "treasonable." Reporters paid for stolen government documents in the 1800s, and Congress even "ordered journalists confined in the Capitol building for contempt as punishment for publishing information about secret congressional proceedings."

Despite this long and contentious history short-formed by Feldstein, did it never occur to a prosecutor to stopper a leak with a subpoena? I'm sure it did, but after the whiskey buzz expired, so did the bright light of that idea.

As Adam Liptak writes in the Times account, "the Supreme Court has drawn the line at efforts to restrain or punish the dissemination of truthful information about matters of public concern." Liptak also points out that the Espionage Act criminalizes unauthorized possession and dissemination of some kinds of national security information, but that the ACLU holds that the act doesn't apply to the leaked document.

If this were a poker hand, I'd take the ACLU's cards, bet high, and watch the feds fold.

Addendum, Dec. 19: The feds fold.

******

And I don't even play cards! Send your judicial poker strategies to . (E-mail may be quoted by name unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)

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