Government attorneys reached deep into their legal bag of tricks to devise a subpoena (pdf) against the American Civil Liberties Union demanding “any and all copies” of a classified document that was leaked to the ACLU in October.
Questioned by an ACLU attorney as to the authority for this demand, a government attorney cited the espionage statutes in 18 USC 793 and 798.
Such an action is unprecedented, the ACLU said in a motion to quash (pdf) the subpoena, and it is also an improper use of subpoena authority.
If successful, this tactic could be used to confiscate classified documents from news organizations, effectively imposing prior restraint on publication and curtailing freedom of the press.
“No official secrets act has yet been enacted into law, and the grand jury’s subpoena power cannot be employed to create one,” the ACLU said.
The subpoena against the ACLU is the latest in a series of new government efforts to tighten controls on classified information and to punish those who disclose such information.
A recent issue of The News Media & The Law, published by the Reporters Committee for Freedom of the Press, focuses on “Journalists and the Espionage Act” and provides updates on several ongoing cases and controversies.
Update, December 18:
One week after the American Civil Liberties Union moved to quash an unprecedented government grand jury subpoena demanding “any and all copies” of a previously “secret” memorandum, the government today backed down from the fight, asking a judge to withdraw the subpoena and saying that the document in question has been declassified.