ACLU: Court files should be opened

"Highly irregular" is how the American Civil Liberties Union of Nevada is describing the secret process whereby court documents have piled up for six weeks, but are viewable only by a federal judge and federal prosecutors, in a civil case involving freedom of expression for online readers of the Las Vegas Review-Journal.

Late Friday the ACLU filed a motion to crack open sealed documents pertaining to its efforts to stop the U.S. attorney's office from tracking down two online readers of the Review-Journal. Both had posted comments unflattering to federal attorneys and the Internal Revenue Service below a news story that ran in late May about the start of Robert Kahre's tax evasion trial, which is still in progress.

"We, like the public, are being kept in the dark," ACLU lawyer Margaret McLetchie said Friday afternoon. She described the present one-sided situation as a troubling abuse of the grand jury process by federal prosecutors.

"They're assuming everything can be done in secret" without even a court ruling to authorize the secrecy, she added. "They seem to think they have absolute power."

The ACLU started the civil case in mid-June. But it still hasn't heard from federal Judge Kent Dawson, who was assigned the case. Nor has it heard from federal prosecutors, who are filing most of their documents under seal, which means the public isn't allowed to read them, and also "ex parte," which means not even the ACLU lawyers can read them.

Ex parte filing is often associated with an urgent need for swift results, but this case has been lingering since the ACLU launched it on June 16.

The civil rights organization is attempting to intervene on behalf of four anonymous commenters, who felt their right to express political opinions without fear of retribution was threatened by two subpoenas. The newspaper fought an initial, sweeping grand jury subpoena to turn over data on all people who posted comments. But it eventually succumbed to a revised subpoena that sought data on only two commenters that could be construed as threatening.

"The public should be able to know," the ACLU's motion says, "how its government is conducting itself in this matter" of forcing a newspaper to identify online readers who verbalize strong opinions.

Federal grand jury rules do bestow secrecy on grand jury proceedings, but the cloak of secrecy shouldn't stretch to hide discussion of the constitutionality of particular subpoenas, the ACLU wrote. Names of suspects -- such as the readers who wrote offensive, potentially threatening remarks online -- can be edited out, but legal arguments should be open to scrutiny.

The ACLU asks Dawson to recuse himself, which would move the case to another federal judge, because his background might damage the public's perception of his impartiality.

One reason is Dawson had already recused himself from the Kahre criminal trial because the judge once sanctioned the Las Vegas business owner in a different proceeding years ago. A second reason, according to the ACLU, is that Dawson had security to guard him from tax protesters while he presided at the 2005 trial that resulted in the conviction of Irwin Schiff, a flamboyant tax foe who is serving time.

Contact reporter Joan Whitely at jwhitely@reviewjournal.com or 702-383-0268.