That Time The US Government Sought To Secretly Delete Parts Of A Public Court Transcript About The NSA

from the literally-rewriting-history dept

The EFF has revealed a very disturbing attempt by the US government to flat out secretly delete portions of a public court transcript over the belief that its lawyers may have slipped up and revealed classified information. This came from the recent hearing in the longstanding EFF case Jewel v. NSA, regarding a challenge to NSA surveillance (which began long before the Snowden revelations). After the hearing ended, apparently things took a turn for the bizarre, in which the government quietly notified the judge that it believed one of its attorneys had accidentally revealed classified information during the (very open) hearing, and hoped to remove that information from the transcript, and pretend that it never happened. The EFF fought it, and eventually the government backed down (perhaps realizing it hadn’t really revealed anything):

On June 6, the court held a long hearing in Jewel in a crowded, open courtroom, widely covered by the press. We were even on the local TV news on two stations. At the end, the Judge ordered both sides to request a transcript since he ordered us to do additional briefing. But when it was over, the government secretly, and surprisingly sought permission to ?remove? classified information from the transcript, and even indicated that it wanted to do so secretly, so the public could never even know that they had done so.

We rightly considered this an outrageous request and vigorously opposed it. 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.? 28 U.S.C. § 753(b).

The Court allowed the government a first look at the transcript and indicated that it was going to hold the government to a very high standard and would not allow the government to manufacture a misleading transcript by hiding the fact of any redactions. Ultimately, the government said that it had *not* revealed classified information at the hearing and removed its request.But the incident speaks volumes about the dangers of allowing the government free rein to claim secrecy in court proceedings and otherwise.

It’s great that this ended well, but it seems immensely troubling that the government even sought to do this in the first place. Of course, I would imagine this might lead some to scour the full transcript (embedded below) to see if there’s any tidbit of information that the government didn’t really mean to claim.

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Comments on “That Time The US Government Sought To Secretly Delete Parts Of A Public Court Transcript About The NSA”

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DeadBolt (profile) says:

that it was going to hold the government to a very high standard and would not allow the government to manufacture a misleading transcript by hiding the fact of any redactions

That is EXACTLY what they were trying to do.

If they’d managed to remove anything, thereby changing a sworn testimony, they could go back and requestion and show that the person was lying under oath, and thereby jeopardise the entire case and try get it thrown out.

Ninja (profile) says:

Govt: “Please we’d like to unsay some stuff.”
Judge: “Wait what?”
Govt: “Some people must also unsee things and unlearn what was described.”
Judge: “That’s unconstitutional and impossible.”
*Govt holds a neurolizer up in the air*
Govt: If you’d just look here for a second…
*fires neurolizer*
Govt: Now, it’s just a duck. It looks like a duck and acts like a duck so it is a duck.
*judge and the public drool*

Anonymous Coward says:

The thing that’s most disturbing ,is how many other Judges may have gave it the go ahead , In the court of law if person who has committed a crime or conspired to commit one is in front of a jury they look back at his past offenses, this should be the case for every attempt by our Government to commit the same offenses ,how is it even possible to trust our Government or our Justice System when everything is shrouded In secrecy.

Halle Bally (profile) says:

Sorry, no record available.

This is just a hint of what is to come.  Here’s one for your Big Red Book of future events.  Those pesky court transcripts will be got rid of altogether.  For national security reasons, you see.  Ter’rists.  There will be no controversy over redacting this or that after the fact.  No record will have been made.  Everything is so much easier that way.

In a sane world, a digital video camera would be trained on the witness box, it’s clock ticking away the seconds down in the lower right-hand corner of the monitor, recording to multiple hard drives.  That would be the official, self-authenticating record.  A transcript could be produced therefrom.  Such systems exist & there are plenty of people who know how to make it all happen.  But that’s not what we’re gonna have.  It will be so blatant, there won’t even be a sham “stenographer.”  EXACTLY as if the whole proceeding never even happened.

The only worse scenario I can envision would be secret courts—& we already have those.

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