Government backs away from unconstitutional use of subpoena power

Yesterday the government backed away from its attempt to use the subpoena power as a prior restraint to force the ACLU to hand over all copies of a secret document. Not only that, the government declassified the document itself. Here is the judge's order noting the government's change of mind, and here (gasp!) is the secret document whose disclosure the government insisted was so important that it had to abuse the investigative powers of the grand jury.

As you will see, the document is nothing other than an memo about when the government would permit photographs of prisoners of war and detainees in the Iraqi Theater of Operations. Not only is this document not crucial to national security, it probably never should have been classified at all.

And yet the government insisted that it didn't snap up every copy of this memo, something terrible would happen to the United States.

This episode aptly demonstrates why claims that we must surrender our freedoms following 9/11 and the War on Terror must be taken with an enormous grain of salt. It's very easy for the government to make these claims, and, as this case shows, it is likely to make them when they are completely bogus. The reasons have to do less with the venality of specific individuals than with the nature of bureacracies, which are naturally allergic to oversight, and which usually seek to maxmize their authority and their lack of accountability.

Once we let our government officials assert emergency as the justification for limiting our rights, they will become addicted to the gesture, and will use the language of emergency and national security to justify more and more things. First they will use the idea to cover up potential political embarassments. Then, as this case demonstrates, they will start to use the gesture reflexively, out of habit, and for no good reason. What the government tired to do in this case-- perform an end run around the Pentagon Papers case for the sake of an unimportant document like this one-- should outrage every American who believes in freedom of speech.

The only way to keep government officials from this particular addiction is to call them out when they try to slip into bad old habits. Hence the old saying that eternal vigillance is the price of liberty.