UNSEALED: The US Sought Permission To Change The Historical Record Of A Public Court Proceeding

David Greene
Electronic Frontier Foundation

A few weeks ago we fought a battle for transparency in our flagship NSA spying case, Jewel v. NSA. But, ironically, we weren’t able to tell you anything about it until now.

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.

We couldn’t tell you anything about that fight because the government’s request, our opposition to it, and the court’s order regarding it were all sealed. But with today’s order by Judge White, the transcript and the arguments over the government’s request to revise it are finally public documents.

Here’s how the events transpired:

On June 6, 2014, Judge White held a hearing in Jewel and Shubert v. Obama on our emergency motion to enforce the court’s previous order that the government preserve evidence of its Internet backbone surveillance, evidence that is directly relevant to the plaintiffs’ claims in Jewel that their Internet communications were collected by the government. Although the government’s lawyers participated by telephone, the hearing was held in a crowded, open courtroom including TV and written press. The government never requested that the courtroom be closed or that attendance be limited in any way.

One week later, the government wrote a letter to Judge White, submitting it ex parte (which means we didn’t get a copy), requesting that it be given the chance to review the written transcript of that hearing before the transcript was provided either to plaintiffs or the public. The government explained that Anthony Coppolino, the lawyer who argued for the government on June 6, “inadvertently made a statement during the hearing that we believe is classified.” The government further explained that “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.

Judge White correctly decided that there was no reason that plaintiffs’ lawyers should not know the government’s request. Thus, the day after receiving the government’s letter, Judge White issued an order, still under seal but sent to us, alerting us to the government’s request and giving us the opportunity to respond to it.

We filed our response on June 20, explaining that 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. 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.” 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.

After receiving our response, Judge White asked the government to reply, which they did on June 30, trying to create a new rule that would allow such outrageous claims when the government accidentally revealed classified information in a public courtroom.

On July 11, Judge White ordered that the transcript be given to the government, and gave the government two-and-a-half weeks to inform it whether there was any classified information in the transcript. If the government believed that the transcript contained classified information, it was required to present to the court “the information that they content was classified and inadvertently disclosed, supported by declarations indicating that the information disclosed had been previously classified and is currently classified.” The court would then perform its own review and determine whether or not to redact anything from the transcript. Judge White further ruled that while this process was going on, these papers would remain sealed.

On July 28, the government informed the court that after reviewing the transcript it determined that there was no inadvertent disclosure of classified information after all.

As a result, Judge White today granted our motion to unseal and as this is being written the various papers are being unsealed. The disputed transcript has already been posted. We will continue to post and index the other documents on our Jewel page as they are unsealed.

The transcript of a court proceeding is the historical record of that event, what will exist and inform the public long after the persons involved are gone. The government’s attempt to change this history was unprecedented. 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.

We are pleased that the record of this attempt is now public. But should the situation recur, we will fight it as hard as we did this time.

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