- The fateful doors of the Ninth Circuit courthouse.
About a year and a half ago, a crowd of May Day protesters smashed some windows at a federal courthouse in downtown Seattle, along with windows of banks and large chain stores. Court officials claim they did around $100,000 of damage to the courthouse.
Tomorrow morning, The Stranger (in the form of me and some attorneys) will walk through those same courthouse doors to challenge the way the federal government handled the fallout from that day. (This morning, KUOW aired a brief interview with me about tomorrow's proceedings.)
As regular readers of The Stranger will remember, the FBI and US Attorney's office reacted to the May Day vandalism with a cold fury, kicking in the doors of "known anarchists" before dawn and hauling them out of bed to search their homes for black clothes, paint, computers, cell phones, and, most chillingly, "anti-government or anarchist literature."
Raiding a house for evidence of a crime is one thing. Raiding a house for evidence of political dissent is something much more disturbing.
But the federal government's insistence on peering into the private lives of non-suspects—and the energy they'd spend trying to keep their own behavior secret from the public—would become even more troubling.
As the investigation dragged on, the US Attorney's office issued subpoenas to several activists—including Matthew Duran and Katherine Olejnik—who it already knew were not even in Seattle on May Day. They were neither suspects of nor witnesses to the vandalism, but were brought before a grand jury (meaning they could not have a lawyer in the room to represent them) and asked numerous questions about their political beliefs and the political beliefs of their friends and associates. (Grand jury proceedings are secret but those who are subpoenaed are allowed to talk about what happened.)
They refused to answer on the grounds that the questions were inappropriate and McCarthy-esque and were sent to prison for five months, two of those months spent in solitary confinement for reasons the SeaTac Federal Detention Center still won't explain to the press or their attorneys. (The grand jury refusers, with their Bartleby-like stubbornness, are in good company—the recently departed Pete Seeger refused to answer similar questions on the same grounds when he was dragged before the House Un-American Activities Committee in 1955. He was also found in contempt and sentenced to prison, but the ruling was overturned.)
In the course of reporting the story, it became clear that the federal government was reflexively sealing court documents, many of them apparently inconsequential, without any compelling reason—dockets, for example, or filings that simply cited legal precedent, or (absurdly) the transcripts of contempt proceedings that had been open to the public.
Which seemed strange. They were kicking down doors looking for anarchist essays and throwing people in prison for not talking about other people's politics, yet they wanted even the simplest and least sensitive details about their legal proceedings hidden from public view.
Their attitude seemed to be "we should know increasingly more about you while you should know increasingly less about us." I eventually started calling this "the law of inverse transparency."
And we decided to fight it in court.
The Stranger was approached by some attorneys concerned about the case: Kim Gordon and Jenn Kaplan, who represented Duran and Olejnik, as well as Neil Fox, president of the local chapter of the National Lawyers Guild. We filed motions to unseal documents and the government filed counter-motions. (Comically, some of their arguments for keeping their motions sealed were filed under seal.)
We also ran a Slog fundraiser that you all generously supported. (It's a pay-to-play system, folks—the lawyers are working pro bono, but the filing fees, FedEx costs, and copying fees are killer. I'm still paying some of those bills out of my own pocket.)
Tomorrow morning, we have oral arguments before a panel of three judges. Our basic position: The American legal system should put a thumb on the scales for transparency and only seal things when it's necessary (to protect people's identities, for example, or to protect the integrity of sensitive information with dire consequences at stake). It should not just assume everything is sealed, only to be shared with the public if the public spends thousands of dollars fighting a court battle over it.
In short, we want to put a small dent in the federal culture of reflexive secrecy—the law of inverse transparency—that we saw hints of in the May Day investigations. (And then saw in full force once Snowden's NSA revelations came out a few months later.)
And we want a legal ruling to show for it to help others in future fights over government transparency.
The hearing begins at 9:30 am. Wish us luck.