Why Did the FBI Redact a Judge's Comments Mocking the FBI?

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The government hides information all the time, for a variety of reasons. As a recently unredacted court documents show, some of those reasons are flabbergasting-dumb.


Yesterday I wrote about Nicholas Merrill, a man who beat an 11-year gag order from the FBI to talk about rejecting a National Security Letter request for his internet service customer’s information. Merrill was able to publish a version of the court’s decision in his favor without redactions.

As blogger Marcy Wheeler pointed out, comparing the unredacted court decision to vacate the gag order to the previously-published redacted version makes it clear that the FBI used redacted to hide remarks from US District Judge Victor Marrero. These secreted-away comments explicitly mock the FBI’s choices to hide information in the case, including the FBI’s insistence on redacting a single “s” at the end of the word “numbers.” (She underlined the information originally redacted; I bolded it.)

As another example of the extreme and overly broad character of these redactions, the Government apparently believes that while the public can know that it seeks records of an “address” and a “telephone number,” there is a “good reason” to prevent disclosure of the fact that the Government can seek “addresses” and “telephone numbers.” (See Gov’t Mem. Attach.) In any event, based on the Government’s redactions alone, a potential target of an investigation, even a dim-witted one, would almost certainly be able to determine, simply by running through the alphabet, that “telephone numberll” could only be “telephone numbers.” Redactions that defy common sense such as concealing a single letter at the end of a word diminish the force of the Government’s claim to “good reason” to keep information under seal, and undermine its argument that disclosure of the currently-redacted information in the Attachment can be linked to a substantial risk of an enumerated harm.

Marrero’s comment that some of the information that the FBI was redacting was already common knowledge was—you guessed it—also completely redacted:

10 Also interestingly, the Perdue Declaration argues that the category of “[a] ny other information which [the recipient] consider [s] to be an electronic communication transactional record” should not be disclosed. (See Perdue Deel. , 70.) However, this category was not redacted by the Government in its submissions or even in the Perdue Declaration.


These redactions are a clear overstep on the FBI’s part. What’s the argument here? That national security will be threatened if terrorists realize a judge thinks the FBI is employing daft secrecy fetishists with poor abilities to make distinctions between actual state secrets and accurate insults? I didn’t realize getting brutally owned was classifiable.

[Empty Wheel]

Photo: Wikimedia Commons




The problem in this case is the same as with the CIA and other organizations with unchecked power: the temptation to use that power is too great.

So you got owned by a judge? Heck, just hide it...

You have to specifically indicate investigatory targets? Photocopy the phone book...

And when you need political support for your clandestine cause? Just float a plan to terrorist bomb Miami and blame Cuba...

Man, I wish that last one was a joke. See: recently declassified Kennedy-era CIA docs. These guys need strict oversight and regular release of formerly classified documents. Once it ages to 5 years, 10 years, and every 10 years after that, a classified document should be subject to review by a panel of senators, representatives, and federal judges, *chosen at random*, for release to the public record. “It would be embarrassing to the Bureau/Agency, and, thus, the country” is not grounds for classification. I don’t care if Nixon was found in a motel with three dead hookers, a goat, and a North Vietnamese general. National security in a democratic society cannot perpetually trump that society’s need to know and guide the activities of its government. If we aren’t allowed to know what is going on “for their own good”, we’ve empowered a new ruling class to be free of the checks and balances enshrined in our constitution. More simply put, if we tolerate secret actions taken without our consent, in our name, we’ve failed.