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August 9, 2014 1:45 PM   Subscribe

NSA Tried To Delete Court Transcript In Lawsuit Over Deleting Evidence On three separate occasions in the Jewel V. NSA case, the NSA sought to delete evidence. Then it sought to redact the transcript.
posted by Sleeper (43 comments total) 27 users marked this as a favorite

 
In matters of official secrecy I tend to follow the Cockroach Principle: for every instance of malfeasance or wrong-doing you hear about, there are 20 you don't.
posted by JHarris at 1:50 PM on August 9 [31 favorites]


PSA: don't read the comments. Just a friendly reminder.
posted by Sing Or Swim at 1:54 PM on August 9


Right wing websites fall in to my "It's implied that the comments are bad," territory along with YouTube and the local paper.
posted by Drinky Die at 2:00 PM on August 9 [1 favorite]


PSA: don't read the comments. Just a friendly reminder.
posted by Sing Or Swim at 4:54 PM on August 9 [+] [!]

NSA: we read everything, delete some things, lie about other things, including the comments. Just a friendly reminder.
posted by Fizz at 2:01 PM on August 9 [6 favorites]


I have an urge to buy Judge White a beer.
posted by hat_eater at 2:01 PM on August 9 [1 favorite]


The Daily Caller article is the only one I see about this on Google News, besides the original EFF post.
posted by RobotVoodooPower at 2:13 PM on August 9 [1 favorite]


for every instance of malfeasance or wrong-doing you hear about, there are 20 you don't.

Only 20?
posted by grouse at 2:18 PM on August 9 [1 favorite]


I am now reading the comments
posted by philip-random at 2:33 PM on August 9 [2 favorites]


Hm. NSA or The Daily Caller. Tough call on credibility there.
posted by octobersurprise at 2:35 PM on August 9 [5 favorites]


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.

So?
posted by Brian B. at 2:36 PM on August 9


As written, the headline made it sound like the NSA tried to hack the court website or physically modify printed documents. The headline here is taken from the article, so it's The Daily Caller's fault, but in both places, I think it would be significantly clearer to say "NSA Asked Judge To Delete Portions of Court Transcript In Lawsuit Over Deleting Evidence".
posted by gsteff at 2:46 PM on August 9 [5 favorites]


So?
So this is the defendant in a case demanding to be allowed to unilaterally remove potentially incriminating evidence from the record without the knowledge of the plaintiff or the public. They are not asking to redact the transcript to conceal secrets from the public, they want to modify it in such a way that it appears not to have been modified, and not tell anyone they did so.

I am beginning to wonder what the overlap in the Venn diagram between "classified" and "incriminating" really is.
posted by agentofselection at 2:51 PM on August 9 [17 favorites]


I am beginning to wonder what the overlap in the Venn diagram between "classified" and "incriminating" really is.

Venn diagrams are more than a single circle though...
posted by mrgroweler at 3:08 PM on August 9 [23 favorites]


I contribute to EFF monthly, an easy to set up thing, drafts from my checking acct. I should probably double it. They are one of the very few voices in the wilderness.

I would contribute to erect statues of Manning and Snowden, also, two of the best very US citizens since September 11 2001. Heroes. Great people.
posted by dancestoblue at 3:13 PM on August 9 [14 favorites]


It speaks badly upon the "mainstream media" that the The Crank Caller is the only entity apparently covering this aspect of the case, but I still would've preferred a post linking the original EFF post. Some things are MetaFilter-Worthy before they get noticed by "the press" you know, and this is one of the things MeFi is FOR.
posted by oneswellfoop at 3:14 PM on August 9 [7 favorites]


So this is the defendant in a case demanding to be allowed to unilaterally remove potentially incriminating evidence from the record without the knowledge of the plaintiff or the public. They are not asking to redact the transcript to conceal secrets from the public, they want to modify it in such a way that it appears not to have been modified, and not tell anyone they did so.

That makes sense to me. Remove classified material, not leave a trace, because alerting people about it means they would go looking for it. Where is it written that leaked classified material is automatically fair game in legal proceedings?
posted by Brian B. at 3:27 PM on August 9


Shadow government wants bigger shadows.
posted by srboisvert at 3:28 PM on August 9 [4 favorites]


That makes sense to me. Remove classified material, not leave a trace, because alerting people about it means they would go looking for it. Where is it written that leaked classified material is automatically fair game in legal proceedings?

From the EFF link above: "Ultimately, the government said that it had *not* revealed classified information at the hearing and removed its request."

Really, just read that whole EFF link posted above. It gives all the requisite details. What you claim to have happened here never happened.
posted by hippybear at 3:49 PM on August 9 [5 favorites]


Where is it written that leaked classified material is automatically fair game in legal proceedings?

It isn't. And you're not wrong to be nonplussed. This isn't the huge deal the EFF has tried to make it. It was a stupid request by the government, but not especially remarkable even if there's no direct precedent. Speaking as a trial attorney, "No one has ever made that motion before" doesn't raise my eyebrow. Too many attorneys are stuck inside the box of only those motions they have seen other attorneys make.

It was a dumb request for two reasons: as the EFF points out, there is a federal statute on point, so any exception would need to be pretty darn compelling; and as the EFF points out, lots of people apparently heard the testimony firsthand. It's a little interesting the judge didn't include that latter fact in his proposed standard of proof for the government, some showing that inclusion in the transcript would effect substantially greater harm than had already occurred.

I can see being slightly scared by the fact that it's a request that could be an incredibly slippery slope if it had been granted by the court. But it wasn't. If I had a nickel for every dumb motion I've seen that could have led to incredibly bad things if a judge had taken them seriously, I'd be typing this from a bigger house.
posted by cribcage at 4:05 PM on August 9 [4 favorites]


JHarris: "In matters of official secrecy I tend to follow the Cockroach Principle: for every instance of malfeasance or wrong-doing you hear about, there are 20 you don't."

I believe that you may be off by an order of magnitude.
posted by Splunge at 4:09 PM on August 9


The relevant bits:

1) The government: “The National Security Agency has asked us to contact the Court to explore ways to determine whether the transcript in fact reveals classified information and, if it does, to attempt to remove it from the public record of the hearing.” The government further asked that neither the plaintiffs, their lawyers nor the public be told of its request.

2) The EFF: The US Supreme Court had repeatedly rejected attempts to prohibit or punish the publication of confidential material when that material was inadvertently disclosed to the public.

3) The government: Tried to create a new rule that would allow such claims when the government accidentally revealed classified information in a public courtroom.

4) The government: Determined that there was no inadvertent disclosure of classified information after all.

Even though no deletion happened, it's important because the NSA is clearly trying to push beyond previously established boundaries and remove content from a court transcript without leaving any evidence that the transcript has been tampered with.
posted by CheeseDigestsAll at 4:11 PM on August 9 [4 favorites]


DON'T you UNDERSTAND!? The TERRORISTS might SEE!
posted by telstar at 4:12 PM on August 9


telstar: "DON'T you UNDERSTAND!? The TERRORISTS might SEE!"

He'll see the big board!
posted by Splunge at 4:23 PM on August 9 [5 favorites]


Really, just read that whole EFF link posted above. It gives all the requisite details. What you claim to have happened here never happened.

I did read it. I never claimed it did happen. I can thus repeat, concerning the government request itself: "That makes sense to me. Remove classified material, not leave a trace, because alerting people about it means they would go looking for it. Where is it written that leaked classified material is automatically fair game in legal proceedings?"
posted by Brian B. at 5:09 PM on August 9


Where is it written that leaked classified material is automatically fair game in legal proceedings?

You have the burden-of-request flipped around here. The question should be "Where is it written that legal proceedings/transcripts can be redacted unilaterally, and does classified information meet this standard if it exists?"

Or, alternately: "Why should this information be privileged/protected, and do we care that some feel that it should?"
posted by CrystalDave at 5:38 PM on August 9


I'm slightly unhappy that Judge White didn't buy the EFF's original motion and unseal the records without the NSA reevaluating the transcript.

ACLU : Happy Anniversary, CIA! 12 Years of Lawlessness!
posted by jeffburdges at 6:22 PM on August 9 [3 favorites]


Brian B.: "I did read it. I never claimed it did happen. I can thus repeat, concerning the government request itself: "That makes sense to me. Remove classified material, not leave a trace, because alerting people about it means they would go looking for it. Where is it written that leaked classified material is automatically fair game in legal proceedings?""

I think there's two problems:

First, the judge ordered both sides to request a transcript for additional briefings, so for the government to try to alter the transcript is at a certain level like trying to rearrange the chess pieces on the board during the game.

Second, and most importantly in my mind, is the government tried to do this behind the defense's back:
One week later, the government wrote a letter to Judge White, submitting it ex parte (which means we didn't get a copy) ... The government further asked that neither the plaintiffs, their lawyers nor the public be told of its request.

Judge White correctly decided that there was no reason that plaintiffs' lawyers should not know the government's request.
If the judge had gone along with the government's request, the re-arranging would have happened while the other player was away from the board.

Its not that accidentally revealed classified material must continue to be public, its that the government is trying to cheat using the claim of accidentally reveal classified material and hide that fact not from "terrorists" or "enemies" but from the plaintiffs and it makes one wonder what other shenanigans the government has been up to which other judges have gone along with.
posted by Reverend John at 6:30 PM on August 9 [8 favorites]


The judge's role is what makes the chess analogy inapt.

You have the burden-of-request flipped around here.

Not really. The standard (with respect to authority, not other concerns) isn't generally whether there is some statute, rule, or law that authorizes a particular action, but rather whether there is one that limits or proscribes it. Which in this instance, as the EFF correctly noted, there is.

I'm slightly unhappy that Judge White didn't buy the EFF's original motion and unseal the records without the NSA reevaluating the transcript.

He seems to have acted thoughtfully. He was told in the vaguest terms there might be a Very Important Problem, and he said okay, show me the problem. That seems reasonable. We have little indication what he would have done if the government had come back with substantiation of some "problem." What indication we do have suggests to my reading, anyway, that he still would have denied the request.
posted by cribcage at 7:10 PM on August 9 [1 favorite]


I followed your link and it put The Daily Caller into my browser history. I kinda don't like you now and want to take a shower.
posted by benito.strauss at 7:45 PM on August 9 [1 favorite]


I didn't want to use The Daily Caller link in the OP, but couldn't find it on any other news site. I guess I should have used the EFF's own page on the topic.

Thanks for your perspective on this, cribcage.
posted by Sleeper at 10:02 PM on August 9 [1 favorite]


The standard (with respect to authority, not other concerns) isn't generally whether there is some statute, rule, or law that authorizes a particular action, but rather whether there is one that limits or proscribes it.

I do not believe that to be correct -- in the context of the United States' constitutional republic:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
posted by mikelieman at 3:13 AM on August 10 [1 favorite]


What is going on USA? And I'm actually asking here. Can someone explain this to me? Him Indoors always keeps saying that he'd love to move to California (better work prospects for him apparently) but then I read things like this and there is no way I'd move there. I don't think there is such a thing as a prefect country or a perfect democracy but it seems to me that the Golden Age of America is way behind us and the country seems to keep moving away from it. Or is it just me?
posted by I have no idea at 5:07 AM on August 10


I'd agree that America's golden age has long since passed for many reasons, most originating with the end of the Cold war, but..

Actually the U.K. is far far worse for hushing up the press, courts, etc. At least American courts assert that theoretically they retain the power over the security apparatus, and accept the role of the press, while U.K. courts place no value on speech and just believe any government bullshit. American cops are definitely more likely to murder you for no reason, but activists are targeted for special attention in both places. Afaik, only the European courts keep the U.K. in check.

Just a few examples : In David Miranda's case, the U.K. judge ruled that "Journalists [have] a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish" Isn't that infinitely worse than the U.S. situation? Ya know, the Guardian was forced to abandon work with Snowden document in London while they continued in NYC. And U.K. courts routinely hand down insane injunctions on publication over merely civil matters.
posted by jeffburdges at 7:07 AM on August 10


I do not believe that to be correct

What's the basis for your belief? I ask because I don't follow what you're saying.
posted by cribcage at 10:50 AM on August 10 [1 favorite]


I think the approach (delete "sensitive" info without letting anyone know you've done it) hearkens back at least as far as the Smyth Report on wartime atomic weapons research. In the second printing, Leslie Groves had one sentence removed because he thought the information was too sensitive (about reactor poisoning by fission byproducts). Of course, this served as a red flag to the Soviets, who already had a copy of the first printing, since it made it clear that this was something important enough to censor.
posted by McCoy Pauley at 1:06 PM on August 10 [2 favorites]


cribcage: "The judge's role is what makes the chess analogy inapt."

Ugh, seriously? Fine, change the game in the analogy to anything with a referee. The point stands, asking the referee if you can cheat, especially asking behind your opponent's back, is pretty much the same as cheating. Just because one ref didn't let you get away with it doesn't make it right, and you'd be pretty justified in being suspicious about whether any other contests with that opponent would be decided fairly.

Or to say it without an analogy: asking to change the trial transcript *without involving the defense* is bullshit because we expect the transcript to act as a resource for the defense, and as an explanation of what led to the decision so everyone else can understand the rules going forward. If the defense had seen what had been revealed as supporting their case and the reason for hushing it up as invalid then they would need to have the opportunity to object.
posted by Reverend John at 4:12 PM on August 11


Look, due respect but you don't know what you're talking about. You appear to believe this case is a criminal prosecution. It isn't. It's a class action lawsuit, and this was a motion by the defense.

I'm just guessing here, but: I don't go into IT threads and get all "ugh seriously." Point taken?
posted by cribcage at 5:47 PM on August 11


The "seriously" was for the objection to the chess analogy rather than the substance of attempted cheating in a contest. What gets me (and I suspect most other people) up in arms is the idea that the government is going behind the back of the very people attempting to hold it accountable, i.e. the plaintiffs.

If you want to argue that I don't know what I'm talking about in regards to the legal proceedings, fair enough. However what turns my stomach about this isn't that they didn't follow the nitty-gritty-technical rules, which I'll concede that they very well may have. What sickens me is that they're trying to evade their moral responsibility to deal fairly with the public they ostensibly serve. If you want to argue that the sort of maneuver they tried to pull was legal, go for it, all that does is call the fairness of the legal system itself into question, the system we rely upon to feel comfortable putting our trust in government agencies like the NSA.

Is that what you're arguing? That the NSA is playing "fairly" in a rigged system? Cold comfort.

I mean, I am reasonably reassured by the fact that the judge did reject the request. However, upthread you said "Too many attorneys are stuck inside the box of only those motions they have seen other attorneys make", but this request undermines our ability to trust the system, and if its unprecedented I'd hope the NSA's lawyers would stop to consider why.
posted by Reverend John at 7:56 PM on August 11






Glenn Greenwald : Proud of the first journalism prize received by @the_intercept https://firstlook.org/theintercept/… - prior winner: http://www.theguardian.com/
posted by jeffburdges at 4:49 AM on August 21


Appears The Intercept has ramped up to publishing more seriously, btw (twitter).
posted by jeffburdges at 11:35 PM on September 3




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