Bush DoJ Slinks Away, Tail Between Legs, from Losing Fight with ACLU and Federal Judge

Brian Zick

Adam Liptak for the NY Times reports Federal prosecutors in New York yesterday withdrew a subpoena to the American Civil Liberties Union that had sought to retrieve all copies of a classified document.In an opaque and defensive four-page letter to the judge in the case, the prosecutors said they were acting “in light of changed circumstances” and their determination that “the grand jury can obtain the evidence necessary to its investigation from other sources.”Another factor may have played a role. A transcript of a closed hearing in the case that was unsealed yesterday suggested the government was going to lose. (…) In a transcript of a closed hearing in the case on Dec. 11 that was unsealed yesterday, Judge Jed S. Rakoff of Federal District Court in Manhattan seemed to indicate grave reservations about the tactic. (…) “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.” Despite the prosecutors' unprecedented aggressive attempt at coercion by use of a grand jury subpoena, in a parting shot assistant United States attorney Jennifer G. Rodgers actually blamed the ACLU for being nasty and unnecessarily combative in defending itself: “The government has attempted to pursue its investigation and its request for the document at issue in as amicable, cooperative and unobtrusive a manner as possible,” she wrote. The A.C.L.U. filed a motion to quash the subpoena, she wrote, even though “the matter might be something the parties could negotiate without litigation, which always remained the government’s strong preference.” Which garnered this sarcastic rejoinder from the judge: “It’s not easy to believe,” Judge Rakoff said, “that the A.C.L.U., despite its history, would be cooperative. Well, hope springs eternal.”

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