According to the New York Times, government use of subpeona power to retrieve classified a document illegally leaked to the ACLU is a "prior restraint".
Federal prosecutors are trying to force the American Civil Liberties Union to turn over copies of a classified document it received from a source, using what legal experts called a new extension of the Bush administration’s efforts to protect national-security secrets.
The novelty in the government’s approach is in its broad use of a grand jury subpoena, which is typically a way to gather evidence, rather than to confiscate all traces of it. But the subpoena issued to the A.C.L.U. seeks “any and all copies” of a document e-mailed to it unsolicited in October, indicating that the government also wants to prevent further dissemination of the information in the document.
The subpoena was revealed in court papers unsealed in federal court in Manhattan yesterday. The subject of the grand jury’s investigation is not known, but the A.C.L.U. said that it had been told it was not a target of the investigation.
The subpoena, however, raised the possibility that the government had found a new tool to stop the dissemination of secrets, one that could avoid the all but absolute constitutional prohibition on prior restraints on publication.
Based on that theory, once classified information has been leaked subsquent disemination of it is a constitutional right and the government has no right to prevent further disclosure. In this particular case we are reassured that the ACLU has already judged the document to only mildly embarrassing and unrelated to national defense.
“The government may be wanting to have its cake and eat it, too,” said Rodney A. Smolla, the dean of the University of Richmond’s law school. “It may want to present this to the court as not carrying heavy First Amendment implications. But to the extent the government wants to prevent the A.C.L.U. from disclosing the content of the document by virtue of this subpoena, it is a prior restraint.”
John C. Eastman, a law professor at Chapman University, disagreed, saying that the subpoena was unusual but not improper and a sign of a moderate approach to a significant problem.
“Assuming it’s properly classified,” Professor Eastman said of the document, “I actually think the government is bending over backwards to accommodate the A.C.L.U. rather than pulling the trigger in prosecuting them.”
“I’m not troubled by the fact that when we’re dealing with classified documents there may be action taken to retrieve them,” he added.
The A.C.L.U. said the subpoena was an effort to chill speech about the Bush administration.
Sooner or later everything comes down to free speech.
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