from the nothing-checked,-little-balanced dept
FBI director James Comey and Manhattan DA Cyrus Vance say we're "going dark." Others more attuned to the vast amount of data generated by everyday life say the opposite. But US magistrate judge Stephen Wm. Smith, writing for Just Security and speaking from firsthand experience, says there's a real darkness out there, but it's government-generated and it's obscuring the inner workings of one of the few checks against government power.
Over the last 40 years, secrecy in all aspects of the judicial process has risen to literally unprecedented levels.It's not just the FISA court -- which, in contrast, is probably more transparent than it's ever been. It's the regular court system where criminal prosecutions are pursued. Documents which used to be easily accessible by any member of the public are now withheld by the request of the government with alarming -- and increasing -- frequency.
That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.The same law that gives the government warrantless access to citizens' electronic communications -- the Electronic Communications Privacy Act -- also gives the government the privilege of preventing service providers from disclosing any information about these requests to targeted users. This blanket opacity is a problem for several reasons (First and Fourth Amendment concerns), not the least of which is no one -- not even Congressional oversight -- can provide an accurate accounting of these requests and their accompanying gag orders.
How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress.The courts may be acting as checks against government power. Or they may be acting as rubber stamps. Given the number of gag orders and sealed documents, it's impossible to make that call. The courts are supposed to act as a check against government overreach and the only way to verify they're actually performing this function is to allow the public to see warrants, orders, motions, responses, and other court documents. But the government has pretty much destroyed this part of the accountability process by abusing a multitude of transparency loopholes -- most of those linked to "national security" or protecting law enforcement means and methods.
The government far too routinely -- in far too many routine criminal prosecutions -- deploys gag orders, sealed documents, ex parte presentations, in camera submissions and other tactics like parallel construction to ensure the judicial playing field is never level. These same tactics also prevent the public from seeing what's being done in their name and with their tax dollars.
Smith also points to the inevitable consequences of the government leading by example: the desire to treat public forums as somehow private arenas has bled over to civil litigation as well.
The same FJC study found that 576 civil cases filed in 2006 were completely sealed, meaning that the public was denied any information about the case, including the docket sheet. Rationales for the blackout varied from weak (“the parties wanted them sealed,” “to protect physicians reputations,” “to protect a party’s credit rating”) to non-existent (“17 pro se actions,” “30 habeas corpus and prisoner actions,” “33 forfeitures and seizures”).Many of those listed still have a government nexus, but even cases that have no government intersection other than the use of the court system will still routinely contain sealed documents.
Even the most mundane employment suit will have a docket sheet littered with “Sealed event” entries.As Smith notes, the numbers provided by the study are far from comprehensive. To fully tally the number of civil cases with sealed documents would take an examination of nearly every suit filed in federal court. Redacted dockets and sealed documents are apparently just as common in the civil arena, a large number of which can also be attributed to direct government intervention.
It's not one administration or one branch. It's everyone and it's been trending towards opacity for over 30 years. The government desires power without responsibility. The worst part is that the courts appear to be allowing it.