Suppressing Dissent Under Cover of Law

The Bush administration has begun issuing subpoenas, in unprecedented ways, in new attempts to intimidate its critics and suppress dissent.

A subpoena is an order to produce documents or appear in court. It is the method by which both prosecutors and defendants can compel the appearance of evidence that helps their case. But the federal government is now moving to turn this process into a weapon of repression and censorship.

On November 17, the American Civil Liberties Union received a call from Assistant U.S. Attorney Jennifer Rogers, who informed the ACLU that they had received a government document by e-mail on October 23. Rogers stated that it was illegal for the ACLU to possess or disclose this document, and she demanded that the ACLU return it and destroy all copies.

Translation: The political police monitoring e-mails saw someone leaking a document to the ACLU that the government doesn’t want the public to see.

The ACLU asked under what authority the government was demanding the return of the document, and Rogers cited the 1917 Espionage Act! When the ACLU declined to return the document, which the ACLU says contains no military secrets, they were served with a subpoena demanding that the ACLU appear before a grand jury with all copies of the three and one-half page document, plus any other documents marked “Secret” from the same source in the last two months.

But the subpoena added: “Personal appearance is not required if the requested documents are produced” before the date when the ACLU was to appear. With this note, the government admits that it is not interested at all in having the ACLU present evidence to a grand jury—it just wants to compel the ACLU to give up any copies of a document which the government already has and knows the contents of. ACLU executive director Anthony Romero said the subpoena is “a patent attempt to intimidate and impede the work of human rights advocates like the ACLU who seek to expose government wrongdoing.”

Pentagon Papers Case

In previous cases of leaked documents, the government has tried to punish the government officials who did the leaking or to force reporters to divulge the names of the leakers. But the government has never previously succeeded in prohibiting the publication of embarrassing political information once it got into public hands.

To see just how unprecedented this new subpoena is, we need only recall the Pentagon Papers case of 1971. Here Daniel Ellsberg and Anthony Russo leaked 47 volumes of classified documents to the New York Times, and the U.S. Supreme Court held that the government could not exercise any prior restraint on their publication unless the information would cause direct irreparable harm to the nation. What the secret papers showed was that the government had consistently lied to the public about many aspects of the Vietnam War. The only harm was to the credibility of the government.

Almost all the recent news disclosures about government lying and spying come from leakers inside the government who cannot stomach what this government is doing. Examples include exposure of the National Security Agency eavesdropping on the phone calls of U.S. citizens and the secret “rendition” of prisoners to foreign countries to be tortured. Unable to stop the leakers, the Bush regime is now using subpoenas to go after those who receive the leaks.

Subpoenas for Watada Case Journalists

Another outrageous abuse of subpoena power is taking place in the Army court-martial of Lt. Ehren Watada, the first commissioned officer to refuse deployment to Iraq. An Army lawyer prosecuting Lt. Watada has issued a subpoena to journalist Sarah Olson to testify in Watada’s trial. He has also threatened to subpoena Truthout executive director Marc Ash, reporter Sari Gelzer, and independent journalist Dahr Jamail. Truthout is a respected Internet site for news and commentary. What these journalists have in common (except for Ash) is that they have conducted interviews with Watada and/or videotaped or reported on public appearances where Watada spoke out about his opposition to the Iraq war.

This subpoena clearly serves no evidentiary purpose. The military prosecutor is not seeking Olson’s notes, unpublished recordings, or confidential sources. Rather, he wants her to “authenticate” material she has already published. The accuracy of the published statements by Lt. Watada is not contested. What the Army is trying to do is force a progressive journalist to function as part of the prosecution team.

“Basically, what the Army is doing is compelling me to build its case and participate in the prosecution of Lieutenant Watada, simply by confirming my reporting,” said Olson. “That’s something I don’t think any journalist can do. They are using me to build their case and to punish military personnel for talking to the press.”

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The use of government subpoena power against the press and organizations like ACLU must be vigorously opposed and defeated. It cannot be allowed to become the new accepted practice. They are examples of what the World Can’t Wait statement is referring to when it says: “That which you will not resist and mobilize to stop, you will learn—or be forced—to accept.”

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