Democrats & Liberals Archives

The new tool in the war on the 1st amendment: the subpoena

In their maniacal obsession on retaining government secrets, federal prosecutors are using a new tool to make certain government secrets stay secrets and are using federal subpoenas to gather and retain documents. (link)

Federal prosecutors are forcing the ACLU to turn over copies of a classified document that the ACLU received from a source. Since the document was in the hands of the ACLU, federal prosecutors issued a grand jury subpoena to secure the original document and any subsequent copies. The use of a issuing a grand jury subpoena is normally used to gather evidence, but in this case, the subpoena is being used to confiscate all traces of it.

This particular document isn't anything noteworthy. In fact, the ACLU described the document as a government policy and is not related to National Security. But what is noteworthy is the precedent of the use of a grand jury subpoena to impound government records.

If the government is successful in bastardizing the legal system into just another extension of the homeland security department, then the prospects of the dissemination of real news to the citizens of America is in serious jeopardy. For, if this grand jury subpoena tactic was used against the NYT when they reported on the NSA's illegal spying tactics one year ago, it’s safe to say that the story would never have been reported. Same goes for Mark Foley and ABCNews. There are really no boundaries to the extent by which the government can sequester and quash information dissemination to its citizens.

It was Thomas Jefferson that believed that the value of our republic depended on an informed citizenry; it was vital to the functioning of a democratic society.

"The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter." Thomas Jefferson

But it appears that the greatest enemy of this current administration is an informed citizenry. An informed citizenry can and will take steps to remove such governments and the administration is using anything and everything to keep its citizens in the dark from knowing the inner-workings of their, very own, government.

Posted by john trevisani at December 14, 2006 9:13 AM
Comment #199223

Think about it, the very idea of the Bush administration trying to keep secret its own policies, is anathema to everything our founding fathers and our Constitution stands for.

I highly recommend everyone who believes Government should not be secret in America regarding its own policies and initiatives, join the ACLU and help them fight to protect us from these kinds of actions which remind us of Kruschev or Putin, not a president of these United States.

This is a clear and blatant attempt by the Bush Administration to muzzle a critic of the administration and defender of the Constitution. This smacks of McCarthyism.

Posted by: David R. Remer at December 14, 2006 11:27 AM
Comment #199235

A huge part of this problem is that Bush and company classify so much. They even re-classified stuff that had been declassified years ago. Makes me wonder why. It’s really overboard.

Posted by: womanmarine at December 14, 2006 12:42 PM
Comment #199239

The terrorists could not have asked for a better president to advance their agenda of destroying America than they got in President Dumb-ass. A man who plays right into their hands.

Posted by: JayJay at December 14, 2006 1:09 PM
Comment #199284

What if the document held by the ACLU is indeed secret and was supposed to remain that way?

Shouldn’t the government go after it and take it away?

Is it up to the “public” to decide what is secret and what isn’t?

Where does the law fit in here, or maybe it doesn’t anymore…

Posted by: cliff at December 14, 2006 3:23 PM
Comment #199291

The way that i understand it; we, as American citizens are the owners of the documents. And the President is merely just another public SERVANT.

It’s our RIGHT, as Jefferson envisioned, to understand and approve or disapprove of what our elected government is doing.

The citizens aren’t meant to serve the politicians; the politicians are suppose to serve its citizens.

What ‘law’ are you referring to? For the constitution is supposed to be the end all be all with regards to the first amendment.

Posted by: john trevisani at December 14, 2006 3:46 PM
Comment #199312

“The terrorists could not have asked for a better president to advance their agenda of destroying America than they got in President Dumb-ass. A man who plays right into their hands.”

perhaps i just assign him more nefarious intentions than yourself, but i would suggest that you are confused concerning who is using whom to advance an anti-american agenda.

Posted by: Diogenes at December 14, 2006 5:59 PM
Comment #199356


I’m sure the reason everyone is silent on this is the same reason I have been. I’ve come to expect this behavior from Bush & Co. now. There is very little that would shock me or surprise me.

Immediately following the release of the ISG report I was very optomistic, mostly due to the suggestion of an increase in diplomacy. Maybe I should say a rebirth of diplomacy. Needless to say, my optomism is quickly fading.

Recent statements from the White House lead me to believe that the only change likely is an increase in troop levels with no renewed diplomacy. Even the Saudi government is balking. It’s looking like we’re just stuck on DUMB.

Maybe Henry Waxman will manage to bring some of Bush’s abuses of power into the light of day. Maybe!

Posted by: KansasDem at December 14, 2006 9:28 PM
Comment #199361

Dont you wonder how the Feds knew the ACLU had this document to begin with? Thats even scarier than the strong arm tatics they are using to regain possession of the papers.

Posted by: j2t2 at December 14, 2006 10:06 PM
Comment #199366


Leaker in Chief!

Posted by: KansasDem at December 14, 2006 10:29 PM
Comment #199368

Diogenes/JayJay: I think the evidence would suggest that it is a reciprocal agreement.

Posted by: jlw at December 14, 2006 10:44 PM
Comment #199377

Wonder who is calling the shots? The new Dem leaders announced they were going to call for a repeal of oil subsidies,specifically the oil leases given for free on federal land. When oil goes over 40$ a barrel they think the oil companies should pay 9$ a barrel to the people that own it,us.So here comes the surprise announcment that the interior dept. has just renegotiated and signed a slew of new agreements where the oil companies will pay an as yet undisclosed amount. Seems the Dems are helping the budget and they are not even sworn in yet. The Dems say they will look at the new agreements and investigate all other leases. The interior dept. admits they do not even know how much money the oil companies are supposed to be paying the government.Good thing those nice oil companies keep track.

Posted by: BillS at December 15, 2006 1:55 AM
Comment #199397


I’m not sure I understand the point of your article. Are you arguing that there the government should not classify anything? Or that if a classified document is leaked, the government should not try to get it back?

As a military member, I know first hand that there are quite a few things that the government needs to keep secret.

I’ve never been a big fan of leaking classified information as a method of “whistle-blowing.” After all, two wrongs don’t make a right. That being said, the situation might be better if Congress had (more) power to request certain classified information from the Executive branch. Better to apply checks and balances than to commit one crime to reveal another.

Posted by: TheTraveler at December 15, 2006 11:35 AM
Comment #199399

John, while agree in general with your thought on the misuse of the subpoena process, I have to say that the government MUST keep some secrets, and some documents must be kept secret from the general population. For example, the release of undercover operatives infiltrating terrorist and criminal organizations should clearly not be public. Information about how the US might conduct a war, strategies for winning, etc. should not be public. Thus there must be some “line in the sand” of where secrecy ends and the public’s right to know begins. Balancing that line in today’s world of terrorism and technology is awfully difficult. I believe that the president has some basic rights to decide what is/is not secret information, and that the press ands the courts have the right to challenge that as apporpriate. If this alleged document is in fact truly of a national security nature, then the president has the right, in fact the necessity of getting it back, though not by the subpoena process. I do not think the founding fathers truly envisioned the kind of world we live in today, and thus we continue to face isuses of secrecy and government overreach that they could never have thought of. Not sure what the answer is. But for me, if it is the choice of living in an America where the government bends the rules “somewhat” to protect us, or dying in a completely open and free country, I’ll choose the former.

Posted by: SteveK at December 15, 2006 11:46 AM
Comment #199403

Give me liberty or give me death.

Posted by: womanmarine at December 15, 2006 12:17 PM
Comment #199404

Without knowing exactly what the document is I’m not sure how it makes any sense to debate this. As others have stated certain documents must be kept secret.

Posted by: Carnak at December 15, 2006 12:26 PM
Comment #199416

The ACLU stated that the document was of little consequence and said it had nothing to do with National Security; it was a policy.

i am VERY uncomfortable with the government abusing their power to bend the will of the justice department by using a subpoena to capture documents. If that were acceptable, where does it stop?

It’s obvious that this administration learned from last December’s NYT article about the illegal wiretapping. Remember that the Bush administration tried unsuccessfully to have the story crushed. If they had used the subpoena then, the story would never have been published.

Same goes for the Pentagon Papers. It was unconstitutional for Nixon and clan to go after the NYT and Elsberg; the same should apply here.

The government can and does declare many things secret. For example, to date, the JKF’s autopsy is still considered sealed. But this administration has been beyond Orwellian in their approach to removing government information from public view. And to be perfectly honest, the approach of declaring odd things secret went on long before 9.11.01. If you remember, one of the first things they did when the Bush administration took over was to declare documents from GWB’s papers from when he was Governor of Texas as secret. And let’s not forget the whole executive privilege from the VP when questioned about his energy committee.

The list is exhaustive and extensive and this article is about the use of a grand jury subpoena to remove documents from public consumption.

Posted by: john trevisani at December 15, 2006 1:31 PM
Comment #199420

john t,

You are on a witch hunt…
What is being done is no different then what has happened over the last 100 years…give it a rest…

Posted by: cliff at December 15, 2006 1:52 PM
Comment #199422


But this administration has been beyond Orwellian in their approach to removing government information from public view…
The list is exhaustive and extensive…

You’ll get no argument from me. But that doesn’t tell me why you have a problem with this particular story.

this article is about the use of a grand jury subpoena to remove documents from public consumption.

At least the government is trying to get the document back into their possession (as they should). Just be thankful that they are doing it in such a low-key way. If I were the president, I would have anyone in unauthorized possession of classified material arrested. In fact, it wouldn’t surprise me if the law says to do that now.

Now that I’m thinking about it, I’m not sure what you mean by “war on the 1st ammendment.” I don’t see where you mentioned it in the article.

Posted by: TheTraveler at December 15, 2006 2:17 PM
Comment #199431


“…they are doing it in a low-key way.”

i’m going to have to disagree with you here. They are going about it by bastardizing the judicial system. That’s not too low-key.

I would have anyone in unauthorized possession of classified material arrested.
Gee. i wonder what your thoughts are on leaking the identity of a covert CIA operative for political purposes? What happened to those involved in that debacle? Oh..right.. nothing. Mr. President-i-will-fire-anyone-involved did nothing.

Why? Because it’s an US-AGAINST-THEM mentality with this administration. And they have proven that they will use anything and everything in their disposal to crush their enemy. In this particular case, the enemy is the ACLU.

Posted by: john trevisani at December 15, 2006 4:19 PM
Comment #199438


i’m going to have to disagree with you here. They are going about it by bastardizing the judicial system.

I just said it was right for the government to get the document back into their possession. I didn’t say they were going about it in the right way. In fact, I agree that this is the wrong way to go about it.
They should have sent the FBI in to confiscate the document and arrest whoever had it.

i wonder what your thoughts are on leaking the identity of a covert CIA operative for political purposes?

Obviously, if I was President, that wouldn’t happen. The CIA would me much more efficient and covert agents would be, oh I don’t know, out gathering intelligence or something.

But then again, I’m not Bush. Thankfully.

Posted by: TheTraveler at December 15, 2006 5:31 PM
Comment #199553

I agree, the subpoena was the wrong instrument to use. The proper tool would have been a search warrant and an arrest warrant.

Posted by: tomd at December 16, 2006 8:36 PM
Comment #199567

If we examine all of the ways that the administration is trying to prevent the dissemination of information there is a distinct pattern to what they are doing. The pattern is clearly seen in a wide spectrum of issues and policies, be it national defense, foreign affairs, domestic policy, global warming, etc. The administration policy is to silence as best as possible, any criticism of their policies. It is just that simple.

Posted by: jlw at December 17, 2006 12:40 AM
Comment #199653

Welcome to America, where having information about what the government is doing, or is planning to do, is a crime. Keep the people ignorant and they might keep voting for you, and if they will not vote for you, rig the elections, or make people disappear. After all, those in power really know what is best for us all. I do not think we can count on a majority in the senate yet. No conspiracy theories yet on the cause of the Tim Johnson AVM event?

Posted by: ohrealy at December 18, 2006 11:18 AM
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