In an Unusual Legal Maneuver, U.S. Army Opposes Disclosure of Documentary Evidence Showing How Army Infiltrator Spied on Antiwar Activists

Plaintiffs in a widely watched civil lawsuit against U.S. Army personnel and multiple law enforcement agencies for spying on antiwar activists in the Pacific Northwest have moved to the next phase of their effort to unseal documents that will better illustrate and validate their case against an abusive governmental counterintelligence program to disrupt nonviolent political protest.

After plaintiffs filed a motion last year to unseal documents in Panagacos v. Towery relevant to the case and necessary to a pending appeal, the Ninth Circuit decided to stay the appeal in February while a three-judge panel considers arguments for and against unsealing a trove of important documentary evidence.

The government has fought against disclosure of the documents for nearly a year, long before the case was dismissed in June of last year. The plaintiffs are poised to move ahead with the appeal, but are being forced to file their Ninth Circuit brief under seal and obscured from public review.

In late January, Thomas Rudd, Force Protection Division Chief and supervisor of Army infiltrator John Towery at Joint Base Lewis-McChord, filed his opposition to unsealing the appeal briefs and documentary evidence. Rudd argued that there is “non-existent public interest in these documents,” whereas plaintiffs argue that Rudd and Towery’s spying efforts and Rudd’s failure to report such spying when required to do so by Army investigators in 2009 indicates significant public interest.

In his opposition, Rudd also complains of harassment and uses this as a reason to keep Army documents sealed. However, other than what has already been made public by government, the documentary evidence plaintiffs are seeking to disclose does not reveal any personal information.

In an April 2014 deposition, Rudd admitted that Towery was working for the Army when he spied on members of Port Militarization Resistance and other groups, which the Army denied until last year. Rudd has so far managed to evade questions about why he previously failed to report Towery’s status as an Army spy.

More recently, in an unusual move in support of Rudd’s motion, the Department of Justice filed a letter with the Ninth Circuit on behalf of the Army, despite not being a party to the appeal. Instead of properly intervening in the appeal, Acting U.S. Attorney Annette L. Hayes attempted to oppose unsealing Army documents in a February 11 letter, thereby violating the Rules of Federal Civil Procedure.

In a rebuttal to the Hayes letter seeking to strike it from the record, Panagacos plaintiffs point out that there are “self-evident and self-serving reasons for the Army to wish to minimize the evidence that is maintained under seal.” Plaintiffs also argue that the Pentagon is the “true manager and overseer of the defense…while trying to maintain the facade that it is not.”

The Ninth Circuit previously ended the briefing period on the issue of document “deconfidentialization” (as the court refers to it). The next step is for the Ninth Circuit to rule on the pleadings and, depending that ruling, the plaintiffs will file their appeal either under seal or open to public review.

At a time when abusive government surveillance is rampant, being able to scrutinize the ways in which the Army has abused its role and authority to disrupt First Amendment-protected activity is very much in the public interest and should not be hidden from public view.