Activists Forced to Submit to Secrecy & File Appeal in Lawsuit Alleging Domestic Military Spying
In a major case involving significant allegations of domestic spying by the United States military, targeted activists have filed an appeal in the Ninth Circuit Court of Appeals. But no members of the press or public can read the appeal because the court forced plaintiffs to file it under seal.
The lawsuit, Panagacos v. Towery, accuses the Army of directing John Jacob Towery, who worked for the US Army Force Protection Division at Fort Lewis, to infiltrate a group called the Port Militarization Resistance (PMR) in Olympia and Tacoma in Washington. It also accuses the cities of Olympia and Tacoma of coordinating with the Army to violate the First and Fourth Amendment rights of activists.
PMR organized demonstrations from 2006 to 2009 and engaged in nonviolent civil disobedience with the intention of preventing the shipment of Stryker vehicles or other military cargo to Iraq.
A district court dismissed the case in June 2014. Essentially, the judge hearing the lawsuit chose not to do his job, admitted to lawyers representing activists he had not reviewed all the evidence against the Army and Towery, and issued a decision that could seriously jeopardize the ability of citizens to dissent in American society if the decision is allowed to stand.
Now, National Lawyers Guild attorney Larry Hildes has filed an appeal, but Hildes must fight for the court to allow the public to read the contents of this important appeal.
“The case is of unusual public interest because it involves very timely controversies, military and governmental spying on civilians, and the violation of constitutional privacy and association rights,” argues a brief to have the appeal unsealed [PDF].
“The right of media access, and general public access, to matters involving governmental spying and suspect police activity is of First Amendment importance.”
Thomas Rudd, head of the Force Protection Division, allegedly directed Towery to identify activists “in order to facilitate their arrest without probable cause.” He allegedly instructed Towery to report on “meetings, demonstrations, and private personal events and relationships” so that “civilian law enforcement agencies” would be able to arrest, follow, cite, detain, harass, and compile and transmit dossiers that would facilitate disruption of the antiwar movement.
According to Hildes, Towery admitted during depositions that he had not only been paid by the Army to go to PMR meetings in private homes but was also paid to attend meetings related to actions planned for the Republican National Convention and Democratic National Convention in 2008. Towery used the term “anarchist” as “a label of convenience,” to target “people and their actions and their threats to the military.”
The Army, as well as Towery and Rudd, appear to fear further embarrassment for their role in domestic military spying. They have pushed for the contents of the appeal to remain secret because it references documents containing evidence, which corroborates serious allegations by activists.
However, Hildes maintains that this violates the protective order and rules established early in the case, which was first filed in 2010. It denies the “public the right to know how extensive the Army operations against peace activists waged from Joint Base Lewis-McChord [were], how high up the chain of command they went, and who specifically was involved.”
Back in December 2013, Rudd and his counsel “produced an unindexed dump of more than 9,400 pages of Army documents related to allegations.”
It took attorneys for the activists three months to go through all the pages. The document dump delayed taking depositions. A motion for summary judgment was filed on the day of the last deposition. The lead counsel for activists “suffered a cardiac emergency.” They were given no extra time to address the issue of unsealing records in the case so the activists had to file their response to the issue of summary judgment under seal. The case was dismissed on June 18, 2014, and the critical issue of whether relevant records showing evidence of Army spying should remain secret went unaddressed by the court.
There are a number of records or parts of records that attorneys have been able to make public. For example, in 2007, “domestic terrorism” dossiers were created of activists, including Brendan Dunn, who is one of the plaintiffs in the lawsuit.
Yet, the Army maintains “threat assessments” created or disseminated by and on behalf of the Army through Rudd should be kept secret. Part of the argument is that it would compromise Rudd’s privacy.
“There is no reason why these documents would compromise his real privacy or safety, or raise any concerns that are not outweighed by the public’s right to know what activities the Army and Rudd were engaged in, with the public’s tax dollars against domestic peace groups and other US civilians,” the brief declares.
Another issue for attorneys pursuing the lawsuit is the court stuck them with a bill of over $38,000 for district court proceedings prior to dismissal.
“Plaintiffs have sought to advance the cause of peaceful dissent against coordinated military and police subterfuge and espionage,” according to the brief. “Plaintiffs sustained targeted acts of harassment, and the police have been accused of targeting activists for being activists. Two plaintiffs have been blacklisted in official police and military fusion networks as ‘domestic terrorists,’ a connotation carrying felony implications. Excessive physical force by police marked the official response to explicitly nonviolent, disciplined civil disobedience.”
“Imposition of over $38,000 in defendant’s litigation costs—in addition to plaintiffs’ own litigation expenses of over $25,000—will be perceived as a civil fine, and its sheer magnitude will deter activists in the future from seeking justice through the courts. It is in the public interest to deny costs and avoid this chilling effect.”
Finally, Hildes concluded, “Military and law enforcement officials have admitted to engaging in actions that not only violate our plaintiffs’ constitutional rights, but also violate a century-old law that should protect US civilians from military intrusion.”
“By targeting activists without probable cause, based on their ideology and the perceived political threat they represent, the Army clearly broke the law and must be held accountable.”