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Misusing a subpoena.

Byline: The Register-Guard

The Bush administration has had more than its share of meltdowns in the credibility department: the nonexistent Iraqi weapons of mass destruction, the heckuva job the federal government did responding to Hurricane Katrina and the "we do not torture" mantra from the overseers of Abu Ghraib and Guantanamo prisons, to name but a few.

So it's entirely possible that Team Bush's latest forehead-smacking flub is simply more of the same. If so, it's safe to say that credibility isn't on the administration's checklist when officials assemble the rationale for their actions.

How else to explain this embarrassment: The Justice Department used a federal grand jury subpoena to demand that the American Civil Liberties Union return "any and all copies" of a leaked classified document, pursuant to a federal investigation into an alleged violation of the Espionage Act of 1917. The ACLU could find no record of the Justice Department having ever before used a grand jury subpoena to retrieve leaked documents.

It's only natural to assume that if the government takes an unprecedented - and legally questionable - step in an effort to prevent the disclosure of information it says could do "serious damage" to national security, something huge is at stake. Here's what the feds went to the mat to protect: a 3 1/2 page Army "information paper" dated Dec. 20, 2005, outlining policies for soldiers and journalists photographing enemy prisoners of war.

This is nothing more than an ordinary procedural memo. It had less to do with national security than today's Baghdad weather report.

Naturally, the ACLU moved to quash the federal subpoena, at which time the lights began to go on, if somewhat dimly, in the minds of federal prosecutors. A transcript of the hearing on the case indicated the government was almost certainly going to lose.

Judge Jed Rakoff of the U.S. District Court in Manhattan had serious doubts about the government's unusual use of a subpoena in this case. "What's the authority for saying that a subpoenaed party can't keep a copy of any document that they produced to the grand jury?" Judge Rakoff asked an assistant United States attorney, who was unable to answer his question.

Instead, federal prosecutors withdrew the subpoena, citing "changed circumstances." That's an understatement. What changed was that the ACLU called the government's bluff, and a federal judge was about to unload on the Bush administration for engaging in a form of confiscatory prior restraint reminiscent of the 1971 Pentagon Papers case.

"There seems to be a huge difference," Judge Rakoff said, "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."

The heavy-handed effort to confiscate all copies is even more outrageous in light of the fact that the document was e-mailed unsolicited to the ACLU and the government knows the identity of the sender. So is this a classified leak investigation? No. Is it an effort to protect national security? No.

It is, quite simply, blatant misuse of a grand jury subpoena to prevent disclosure of an innocuous document the misclassification of which was an embarrassment to the government. It further erodes the administration's diminishing credibility and reveals the alarming priority being placed on secrecy and suppressing information.

The ACLU incident underscores how important it will be for Democrats to establish meaningful congressional oversight of President Bush's controversial electronic eavesdropping program. Anyone who accepts at face value Bush's assurance that the program is only concerned with "legitimate" national security matters simply isn't paying attention.
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Article Details
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Title Annotation:Editorials; The ACLU rebuffs a Justice Department intrusion
Publication:The Register-Guard (Eugene, OR)
Article Type:Editorial
Date:Dec 26, 2006
Words:597
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