Revolution #74, December 24, 2006
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.”
* * * * *
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.”