In response to the ACLU of Nevada’s challenge to the government subpoena for the identities of anonymous commenters, the government has made numerous filings that have been kept secret – both from the ACLU of Nevada who is litigating the constitutionality of the subpoenas and from the public.

On behalf of anonymous “DOE” plaintiffs, the ACLU of Nevada is challenging subpoenas issued by the United States Attorneys Office to obtain identifying information about two individuals who posted anonymous comments on an online Las Vegas Review-Journal article concerning a high-profile tax case. The ACLU of Nevada believes that the subpoenas violate the First Amendment rights of commenters, chill speech, and may even potentially chill jurors in the underlying tax case from disagreeing with the government.

The subpoenas are especially troubling because one was issued by the same attorney who is prosecuting the tax case the commenters were reacting to. The commenters disagreed with the United States tax policies and the government’s position in the case. The fact that subpoenas were then issued seeking their identifying information carries more than a veiled threat of criminal prosecution for speech.

Neither of the comments included in the subpoena are criminal and they do not represent a true, immediate threat. One commenter bet fictional Star Trek money (“quatloos”) on whether one of the prosecutors would live. The other comment says the jurors should be hung if they convict. If every comment about what “should” be done to the ACLU, for example, were followed with a subpoena, law enforcement would have time to do little else. While such comments are crude and even offensive, they are not criminal.

The ACLU of Nevada filed motions to quash the subpoenas and is asking for a protective order prohibiting the use of any information obtained from them. We are trying to make clear that the U.S. Attorney’s office cannot abuse its grand jury subpoena power and must comport with the First Amendment.

The Nevada ACLU is also seeking to recuse the assigned judge from the case. The ACLU does not question the judge’s integrity or ability but is instead seeking recusal in order to preserve integrity in the judicial process because his impartiality might reasonably be questioned. The judge, Judge Dawson, recused himself from the underlying tax case that the commenters were discussing. In addition, in 2005, Judge Dawson presided over another high profile tax case. During that trial, Judge Dawson felt intimidated by supporters of the defendant to the point that federal marshals were required for his safety. Given that Judge Dawson has been the target of people who may be viewed as similar to the commenters, and part of the same anti-tax movement, it is reasonable for an objective observer to question his impartiality when the government is now trying to obtain identifying information about these individuals. This is especially so because the very question raised by the government’s subpoenas is whether certain comments by tax protesters rise to the level of genuine threats.

The U.S. Attorney’s Office has filed a motion to dismiss the action. The ACLU of Nevada is fighting their motions to dismiss, but is hamstrung in our efforts to fully litigate this matter because, in violation of legal rules, the U.S. Attorney’s Office has made numerous “secret” under seal and ex partefilings that neither the ACLU of Nevada nor the public can see – or even know about. This violates the rules governing legal actions, and established law.

“That the government would proceed under the cloak of secrecy and try to avoid public scrutiny is especially problematic here where the heart of the case is governmental abuse of power – and because we have sought recusal of the judge,” said Maggie McLetchie, Staff Attorney for the ACLU of Nevada.

The government has the burden of showing why something should be kept secret. Usually a party must file a brief seeking permission to file under seal, giving the other side and the press the opportunity to oppose that request and explain to the court why documents should not be kept secret. “Here, the process has been short circuited and the government seems to simply assume that they have permission to proceed in secret,” said Ms. McLetchie.

Even worse, the documents are not just being kept under seal; they are being withheld from the attorneys for the DOE plaintiffs, which is unprecedented even for cases involving official state secrets.There is no legitimate reason why this information is being kept away even from counsel for the subpoenas’ challengers. “The secret filings violate due process. The challengers cannot possibly respond to secret filings, which in essence are private conversations between the judge and the U.S. Attorney’s Office,” explained Ms, McLetchie.

There are four “missing” documents from the docket. It is our understanding from the clerk’s office that these four documents have been filed under seal and ex parte. The court would not disclose to the ACLU what the documents were or even when they were filed. The ACLU has absolutely no idea what these documents are or if it supposed to respond to them – and obviously cannot properly respond to something it cannot read and is not even supposed to know about. “Indeed, had we not happened to call to inquire of the Clerk’s office, we would never even have known these secret communications between the court and the U.S. Attorney’s Office existed,” commented Ms. McLetchie.

Currently, the ACLU of Nevada is preparing to ask the court to provide both the attorneys at the ACLU of Nevada and the public access to the secret government filings.