When is a secret not a secret?

Last week, the Bush administration was prepared to break new legal ground in its quest to stifle the contents of a "secret" classified document. This week, it decided the document isn't so secret after all.

The Justice Department issued a subpoena to the ACLU last week for a classified document that had been leaked to the group. The subpoena, part of a broader investigation (into what, they wouldn't say), asked for "any and all copies" of the document. The ACLU kicked up a fuss, seeing the move as a new and creative way for the government to keep information under wraps (see below). As the New York Times noted, a subpoena "is typically a way to gather evidence, rather than to confiscate all traces of it."

Apparently the item wasn't so dangerous after all. The Justice Department abruptly notified the ACLU today that the document was no longer classified -- as of Friday.

So what was all the fuss about? An ACLU press release describes the newly-public document:

The document at issue, which the government has now said is declassified as of last Friday, is a December 2005 memorandum, marked "Secret," with the subject line: "The Permissibility of Photographing Enemy Prisoners of War and Detainees." The memorandum concludes that the news media and members of the Public Affairs Office are allowed to photograph detainees "so long as the photography is done in such a manner that cannot be interpreted as holding the EPWs and detainees up to public curiosity." U.S. soldiers, the memorandum says, are prohibited from photographing detainees and EPWs except as part of their official duties.

[ACLU Executive Director Anthony Romero] noted that the memorandum was issued more than a year after the infamous Abu Ghraib photos came to light. The documents, he said, "raise the question of whether the guidelines were in place prior to the Abu Ghraib scandal and if not, why it took more than a year after the scandal to issue a policy."

Why was this document ever classified? As Romero said last week, "It simply had nothing to do with national security. If anything, it might be mildly embarrassing to the government."