An interesting dispute is brewing in the Southern District (before Judge Rakoff), one that concerns the ongoing debate relating to leaks of national security information. The case is captioned: In re Grand Jury Subpoena Served on the ACLU (S.D.N.Y.).
It appears that in October someone leaked a classified memorandum to the ACLU via email, possibly pertaining to interrogation issues and in any event apparently relating in some way to some aspects of the ACLU’s litigation agenda arising out of post-9/11 developments.
The ACLU has since received a grand jury subpoena demanding production of all copies of the document (the subpoena refers to a violation of 18 USC 793, though the ACLU says in their press materials that they’ve been told they are not a target), and is now resisting compliance. The ACLU’s position is that the request serves no investigative purpose, but instead amounts to a prior restraint in violation of the First Amendment (they suggest that this amounts to an end run around the rule of New York Times Co. v. United States (the Pentagon Papers Case). The motion also argues that this is an unprecedented use of the grand jury's subpoena power - any thoughts on whether that is correct, separate and apart from the First Amendment issue?
In any event, here are the documents that have been made available thusfar:
Subpoena:
http://www.aclu.org/images/torture/asset_upload_file278_27652.pdf
ACLU motion to quash:
http://www.aclu.org/images/asset_upload_file251_27648.pdf
Declarations from ACLU attorneys, and outside counsel, describing the underlying events:
http://www.aclu.org/images/torture/asset_upload_file888_27649.pdf
http://www.aclu.org/images/torture/asset_upload_file613_27651.pdf
http://www.aclu.org/images/torture/asset_upload_file874_27650.pdf
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