ACLU Seeks to Retain 'Whistleblower' Papers

In an ongoing battle with the Bush administration, the ACLU filed a motion this week to retain secret papers sent to them by an alleged whistleblower.

SCOTT SIMON, host:

This is WEEKEND EDITION from NPR News, I'm Scott Simon. The U.S. government is in a standoff right now with the American Civil Liberties Union, demanding the organization return copies of a secret government document. That might not sound surprising, except that, as NPR's David Folkenflik reports, critics say it represents a new effort by the Justice Department to plug leaks by using the grand jury process.

DAVID FOLKENFLIK: The ACLU has bedeviled the Bush administration over the past five years by seeking to disclose sensitive elements of the war on terror. ACLU executive director Anthony Romero says the Justice Department seems to be returning the favor.

Mr. ANTHONY ROMERO (ACLU): We first got a call from the U.S. Attorney's office, a U.S. Attorney who asked us to turn back a copy of a document we received in October of 2006.

FOLKENFLIK: The document was stamped secret, but it was sent unexpectedly to the ACLU by a whistleblower. Assistant U.S. Attorney Jennifer Rogers was demanding its return and any copies the ACLU had made of it. Anthony Romero says ACLU lawyers said they'd get back to her.

Mr. ROMERO: Within an hour then, she issued a subpoena on the ACLU. That was on November 20th.

FOLKENFLIK: This week the ACLU filed a motion to have the subpoena quashed. Prosecutor Rogers did not return a call seeking comment, while the U.S. Attorney's office in Manhattan and the U.S. Justice Department declined to comment for this story. The administration has taken a tough stance against unapproved disclosures of classified information. Here's what U.S. Attorney General Alberto Gonzales said at a Senate hearing back in July.

Mr. ALBERTO GONZALES (U.S. Attorney General): For the record, sir, let me just say, whether or not I say it publicly here on out, I condemn all leaks.

FOLKENFLIK: Neither side has explained what's in the document obtained by the ACLU. Romero describes it as fairly unremarkable, but says the Justice Department's actions have made it very important.

Mr. ROMERO: They want to eliminate any trace of the document within the ACLU. And that is just a complete abuse of the grand jury process. The grand jury process is meant to be a process where they collect evidence, not confiscate documents.

FOLKENFLIK: But judges often defer to government arguments invoking national security. Victoria Toensing created an anti-terrorism unit at the Justice Department under President Reagan. She says classified means classified.

Ms. VICTORIA TOENSING (Partner, diGenova & Toensing): But the ACLU has no idea whether the document covers something that's the equivalent to troop movement, because they don't know the context in which this document was made.

FOLKENFLIK: Toensing says free speech arguments by the ACLU don't trump the prosecutor's need to get those records back.

Ms. TOENSING: If there is something out there, a classified document that's not supposed to be there, then it's in the government's interest to see that all of it's gathered and brought back into the fold.

FOLKENFLIK: In another case earlier this year, the FBI sought to get back decades-old government files that the late investigative columnist Jack Anderson had given to George Washington University scholar Mark Feldstein. Feldstein is himself a former investigative reporter, and he has a dim view of the ACLU subpoena.

Mr. MARK FELDSTEIN (George Washington University): I don't see these as isolated incidents. I see these as part of a broader assault on freedom of information by this administration.

FOLKENFLIK: There is one tantalizing clue about the possible contents of the memo. The ACLU's Web link to its court filings includes the word torture. But ACLU executive director Anthony Romero would not confirm its relation to the case. He expects a ruling within several weeks. David Folkenflik, NPR News.

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