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Tuesday, February 4, 2014

Tomorrow Morning, The Stranger Goes to Court to Fight for Government Transparency

Posted by on Tue, Feb 4, 2014 at 3:23 PM

The fateful doors of the Ninth Circuit courthouse.
  • 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.


Comments (24) RSS

Oldest First Unregistered On Registered On Add a comment
Luck your defending anarchists, I hope you lose and badly.
Posted by dkjndmsahksdhksal on February 4, 2014 at 3:33 PM · Report this
gunmmoontree 2
Good luck!!!!! May the force be with you.
Posted by gunmmoontree on February 4, 2014 at 3:36 PM · Report this
This isn't about defending the anarchists, @1. It's about defending your right—yes, yours—to know what your law-enforcement and judicial systems are up to.
Posted by Brendan Kiley on February 4, 2014 at 3:37 PM · Report this
Pope Peabrain 4
And it was just plain uncivilized. Grab and lock up innocent people and hold them for months!?! Why not just starve them, too? You've already destroyed their lives.
Posted by Pope Peabrain on February 4, 2014 at 3:43 PM · Report this
Mittens Schrodinger 5
Good luck, Brendan! I wish I didn't think you would need it so badly.
Posted by Mittens Schrodinger on February 4, 2014 at 3:46 PM · Report this
Abbafui 6
The Seattle Playwrights' Collective is doing a reading of a play this weekend that deals with this very same issue. It's Called "Free Country" - Sunday at 6 pm, Elliott Bay Books. More here:…
Posted by Abbafui on February 4, 2014 at 3:50 PM · Report this

If the lackadaisical behavior of officials after the Days of Hipster Wrath occurred isn't any indication that Seattle is a two-class society, I don't know what is. But then we already knew that Washington's (monstrous) Lil' Darlings are above the law.

Posted by Supreme Ruler Of The Universe http://_ on February 4, 2014 at 3:55 PM · Report this
@1: Wow you're an idiot.

Brendan: You've got this.
Posted by Hanoumatoi on February 4, 2014 at 4:15 PM · Report this
Good luck Brendan! Thx for fighting for us!
Posted by dk pan on February 4, 2014 at 4:17 PM · Report this
Is anyone going to live-slog this?
Posted by ultrasuedecushion on February 4, 2014 at 4:56 PM · Report this
MacCrocodile 11
@10 - God I hope so.
Posted by MacCrocodile on February 4, 2014 at 5:11 PM · Report this
Is violence protected speech?
Posted by Can't yell fire in a theater either on February 4, 2014 at 5:35 PM · Report this
McBomber 13
Good luck and thank you.
Posted by McBomber on February 4, 2014 at 6:28 PM · Report this
I so appreciate your doing this. Keep us posted.
Posted by quidnunc on February 4, 2014 at 9:07 PM · Report this
Fistique 15
Jesus, those big sheets of glass sure are costly.
Posted by Fistique on February 4, 2014 at 10:20 PM · Report this
Claypatch 16
Thank you so much for doing this Brendan. This is a class example of active civic discourse and good citizenship: getting in there and fighting for a public right of transparent government.
Posted by Claypatch on February 4, 2014 at 10:40 PM · Report this
Some Old Nobodaddy Logged In 17
1, it's amazing that after 70 years, the lessons of fascism are still completely lost on some people.

we understand what you're going through. you're a small person and you want to feel powerful. you can't do it yourself, so you do it by proxy through a powerful entity. but there is an end result to that, and it's not a good one. in fact, it's pretty fucking horrific.

Posted by Some Old Nobodaddy Logged In on February 5, 2014 at 12:30 AM · Report this
Canadian Nurse 18
Keep fighting the good fight!!
Posted by Canadian Nurse on February 5, 2014 at 5:58 AM · Report this
Is there a way to donate now? I missed this the first time around.
Posted by Anonymous Cowar2 on February 5, 2014 at 6:54 AM · Report this
Congrats and thanks, Brendan!! Between this and Dominic's role in cleaning up the Sheriff's office, The Stranger staff are doing an incredible job of putting their bodies (and their money) where their words are!
Posted by DannyG on February 5, 2014 at 7:13 AM · Report this
Thanks to you and Neil and Jenn and everyone. We gotta stop this crap!
Posted by Linda J on February 5, 2014 at 8:55 AM · Report this
You guys are awesome, sending you good luck this morning!
Posted by cortes on February 5, 2014 at 9:03 AM · Report this
Fried Worms 23
Thanks for standing up for our rights, Brendan!
Posted by Fried Worms on February 5, 2014 at 9:26 AM · Report this
Good luck man. Still haven't heard anything more on my end.
Posted by daotherBrendan on February 5, 2014 at 11:48 AM · Report this

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