The National Security Agency secretly tried to delete part of a public court transcript after believing one of its lawyers may have accidentally revealed classified information in a court case over alleged illegal surveillance.
Following a recent hearing in the ongoing Jewel v. NSA case, in which the Electronic Frontier Foundation is challenging NSA’s ability to surveil foreign citizen’s U.S.-based email and social media accounts, the government informed U.S. District Court Judge Jeffrey White it believed one of its attorneys mistakenly revealed classified information.
The government then requested that the select portion of the hearing’s public transcript be secretly deleted without alerting the public to the alteration. According to the EFF, the open courtroom case — which has been steadily picking up media coverage following NSA leaker Edward Snowden’s bulk surveillance revelations — was “widely covered by the press” and “even on the local TV news on two stations.”
“We rightly considered this an outrageous request and vigorously opposed it,” senior staff attorney for the EFF David Greene said in a statement. “The public has a First Amendment right not only to attend the hearing but to have an accurate transcript of it. Moreover, the federal law governing court reporting requires that ‘each session of the court’ be ‘recorded verbatim’ and that the transcript be certified by the court reporter as ‘a correct statement of the testimony taken and the proceedings had.’”
The government made no attempt to close the courtroom prior to the hearing, and one week after, sent a letter to Judge White asking to review the transcript, and at the request of NSA, delete any part of the transcript revealing information the signals intelligence agency deemed classified without alerting the public, plaintiffs, or their lawyers.
Judge White disregarded the government’s request for secrecy and sent a letter to the plaintiffs’ attorneys the next day notifying them of the government’s attempt, and offered them a chance to respond.
“We asked Judge White to reject the government’s request in full arguing that the government could not meet the strong First Amendment test to prove that its revisions to the transcript were ‘essential to preserve higher values and narrowly tailored to serve that interest,’ Greene wrote. “We also argued that under no circumstances should the government be able to ‘remove’ anything from the transcript without indicating that something has in fact been removed, a process commonly called ‘redaction,’ not ‘removal,’ the term used in the government’s request. We also asked the court to unseal all of the papers that had been filed about this dispute.”
White allowed the government to look at the transcript, but warned he would “hold [it] to a very high standard and would not allow [it] to manufacture a misleading transcript by hiding the fact of any redactions.”
After reviewing the transcript, the government concluded it had not accidentally revealed such information, and withdrew its request. As a result, the EFF, which was previously barred from publicly revealing the dispute, filed a motion to unseal the documents, which the court granted earlier this week.
According to the EFF, ”the incident speaks volumes about the dangers of allowing the government free rein to claim secrecy in court proceedings and otherwise.”
Previously in the same case White was forced to order NSA to stop deleting evidence relevant to the case on three separate occasions, after an accidental DOJ email revealed to the EFF that the government had never complied.
After the third court order the NSA argued against the judge’s order, and said that not only were its systems too complicated to stop the deletion, forcing the agency to do so would have a detrimental effect on national security.
“The government’s attempt to change this history was unprecedented,” Greene wrote about this week’s decision. “We could find no example of where a court had granted such a remedy or even where such a request had been made. This was another example of the government’s attempt to shroud in secrecy both its own actions, as well as the challenges to those actions.”
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