Two of the protest leaders are challenging that secrecy in federal court in Minneapolis. They have been pressing to have U.S. Magistrate Judge Steven Rau issue an order to make their warrants public.
The Star Tribune joined the legal fray this week, filing a motion that asks the judge to unseal the warrants and supporting documents unless he is satisfied the government can show it is not violating the First Amendment and legal precedents. On Friday, Rau granted the newspaper’s request to intervene in the case.
The dispute over the sealed warrants was first aired by the activists at a hearing last fall. Rau gave Assistant U.S. Attorney Andrew Winter 120 days — until Feb. 28 — to produce documents showing that the investigation is continuing as well as “documents explaining what has been happening in the investigation” since the warrants were issued.
Rau said the documents could be provided “in camera,” meaning not public.
In court, Winter left open the possibility the matter could be resolved within 120 days.
Bruce Nestor, attorney for activists Mick Kelly and Jessica Sundin, said he was hopeful it meant the government will not issue indictments, but said it could also indicate they will.
5 Minneapolis homes raided
On Sept. 24, 2010, FBI agents raided the Minneapolis homes of five antiwar activists and leaders as part of what was called a probe of “activities concerning the material support of terrorism.” The Minneapolis office of the Anti-War Committee, a sponsor of many of the protests in the Twin Cities, was also raided.
Raids were also conducted on two homes in Chicago, and 23 subpoenas were issued to activists in both cities as well as in Michigan to testify at grand jury proceedings in Chicago, Nestor said. Activists here announced that they would refuse to testify.
He said that so far as he knew, no one subpoenaed agreed to testify nor have they been compelled to do so.
In a memorandum filed in September, Nestor argued that sealing the documents “for an indefinite period of time” violates the Fourth Amendment, which bars unreasonable searches and seizures.
This week Star Tribune attorneys John Borger and Leita Walker cited numerous federal court decisions that spell out the rights of media access to judicial records. Courts have held that if documents are sealed, judges are obligated to outline the reasons, they wrote.
On Thursday Steve Schleicher, acting chief of the criminal division in the U.S. attorney’s office repeated the government’s position: “There is still a government interest in keeping these materials sealed and Mr. Winter indicated at the hearing that there is an ongoing investigation.”
The lack of criminal charges in the case has raised questions. Nestor suggested that federal authorities may have been deterred by criticism of the raids from many civil libertarians. A “Committee to Stop FBI Repression” has held meetings and protests and its website has posted letters by 11 members of Congress to President Obama or U.S. Attorney General Eric Holder, questioning the investigation.
Nestor filed documents this month that he said were accidentally left behind by FBI agents in an apartment raid. It shows that the FBI was concerned about trips of individuals to meet and provide “material aid” to designated terrorist groups by the State Department, including the Popular Front for the Liberation of Palestine.
First Amendment rights
He said there has been wide concern among civil liberties groups about the effect on First Amendment rights of a 2010 U.S. Supreme Court decision that broadly defines material support to include making “coordinated” statements with proscribed groups.
The FBI documents also list questions to ask specific individuals, such as:
“Did you ever recruit anyone to go to Israel, the West Bank or Gaza?”
“Have you ever taken steps to overthrow the United States government?”
“What did you do with the proceeds from the Revolutionary Lemonade Stand?” for a group that sold souvenirs at a small Chicago store.