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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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JASON LEOPOLD,

:
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Plaintiff,
: CA No. 14-919
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v.
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:
NATIONAL SECURITY AGENCY,
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Defendant.
:
-------------------------------------------------------

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TRANSCRIPT OF MOTIONS HEARING

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BEFORE THE HONORABLE KETANJI BROWN JACKSON

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UNITED STATES DISTRICT JUDGE

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Tuesday, August 11, 2015

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APPEARANCES:
For the Plaintiff:

LAW OFFICE OF JEFFREY L. LIGHT


BY: JEFFREY L. LIGHT, ESQ.
1712 Eye Street NW, Suite 915
Washington, D.C. 20006

For the Defendant:

U.S. DEPARTMENT OF JUSTICE


BY: STEVEN Y. BRESSLER, ESQ.
P.O. Box 833
Ben Franklin Station
Washington, DC 20044

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Proceedings reported by machine shorthand, transcript


produced by computer-aided transcription.

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BARBARA DE VICO, FOCR, CRR, RMR


(202)354-3118
Room 6509

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P R O C E E D I N G S

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DEPUTY CLERK:

Your Honor, this is Civil Case

14-919, Jason Leopold v. National Security Agency.

going to ask counsel to please come forward and identify

yourselves for the record.

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MR. LIGHT:

Good afternoon, Your Honor.

I'm

Jeffrey

Light on behalf of plaintiff, Jason Leopold.

THE COURT:

Good afternoon, Mr. Light.

MR. BRESSLER:

Good afternoon, Your Honor.

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Steven Bressler with the U.S. Department of Justice on

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behalf of Defendant the National Security Agency.

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THE COURT:

Good afternoon, Mr. Bressler.

This

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is a hearing that I scheduled with respect to the parties'

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cross motions for summary judgment regarding Plaintiff's

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FOIA request dated April 8, 2014.

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I am familiar with your arguments, but this is

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an opportunity for you to provide an oral presentation and

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for me to ask questions to make sure that I understand the

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pending motions.

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intend to impose strict time limits.

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the plaintiff to speak first, giving an overview of the

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case, and in this case the plaintiff has moved for summary

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judgment, so the plaintiff can set forth its arguments

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related to why summary judgment should be granted in the

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plaintiff's favor.

As is my ordinary procedure, I don't


I typically allow

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And then counsel for the National Security

Agency can respond, giving an overview from the

defendant's perspective and why summary judgment should be

granted in favor of the NSA.

go back and forth until we're all exhausted.

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And then we will essentially


All right?

So Mr. Light, why don't you begin and tell us


what this case is about.

MR. LIGHT:

Thank you, Your Honor.

Plaintiff Jason Leopold after reading an article

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in Vanity Fair in which Edward Snowden stated that he had

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raised concerns with the NSA prior to disclosing

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classified information, Plaintiff Jason Leopold submitted

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a FOIA request asking the NSA for those emails in which

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Snowden raised concerns.

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After a significant amount of briefing, the

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parties now seem to have been able to distill the issues

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to two things.

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properly interpreted Mr. Leopold's request of the phrase

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"raised concerns" about NSA programs, and the second is

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whether it was appropriate for the NSA upon receiving the

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FOIA request to rely on a previous search that it had done

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as part of a criminal investigation rather than conducting

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a new search in response to Plaintiff's FOIA request.

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The first one is whether the agency

First I'd like to emphasize something that I


think is not at issue at this point in the briefing.

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There is not an issue about the universe of documents that

the NSA collected.

THE COURT:

I'm sorry, collected when?

MR. LIGHT:

During the criminal investigation.

THE COURT:

All right.

MR. LIGHT:

NSA collected all documents that

were to or from Edward Snowden, and we are not challenging

at this point having, I think, the defendant has explained

adequately at this point how they went about collecting

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that universe of documents.

They went to certain offices,

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they asked individuals to search their email addresses.


But having established that universe of

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documents that we're looking at, the dispute between the

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parties concerns how did we get from that universe of

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documents that are potentially responsive to the NSA's

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conclusion that none of those documents are, in fact,

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responsive to Mr. Leopold's FOIA request.

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the --

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THE COURT:

Most of what

So it's your contention that in

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gathering that universe of documents the NSA did not do as

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declarant Sherman suggests, which is look for the

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documents in which Edward Snowden raised concerns about

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NSA programs?

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MR. LIGHT:

So what it appears happened was

during that criminal investigation there was a universe of

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documents that are potentially responsive, and he

describes how those documents were found.

particularly in his last declaration he goes into more

detail or he uses that phrase "universe of documents."

And so, for example, they asked individuals to search for

the word "Snowden" or in the contact last name field

search for Snowden.

passed along to the Associate Director of Security and

Counterintelligence.

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I think

And that all of those documents were

And the issue we have is how did the Associate

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Director of Security and Counterintelligence, having

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received all those documents, search through them.

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how did the Associate Director of Security and

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Counterintelligence collect those documents.

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Not

And it is not clear from their declarations how

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the Associate Director of Security and Counterintelligence

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went about doing that.

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primarily in electronic format or paper, if they were in

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electronic format what specific keywords would have been

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used to narrow it down to specific things in which "raised

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concerns" were used.

Whether these documents were

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So, for example, the phrase "raised concern"

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could have been a keyword or "constitutionality" could

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have been a keyword, but we have no idea what keywords

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were used.

We don't know whether all of these documents

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were specifically read by humans or whether they were

searched as if they were, this universe was a sort of

database.

concerns" is, the parties have a dispute about exactly

what that means.

objective criteria as a request that specifically said,

you know, I want all documents in this office during a

certain time period.

that happened in order to determine whether the way that

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And the problem is because the term "raised

And it is perhaps not as susceptible to

We need more information about how

they went about that search was proper or not.

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THE COURT:

Can I just ask you a question?

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MR. LIGHT:

Yes.

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THE COURT:

Why wouldn't Mr. Leopold just submit

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another FOIA request that said, you know, all the

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documents that in which, you know, relating to NSA in

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which Edward Snowden made any statement about NSA's

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programs?

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is going on with respect to the meaning of "raised

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concerns" when there are other ways that requests could

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have been stated and perhaps still could be stated.

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It seems odd to me that all of this litigation

MR. LIGHT:

If the Court is inclined to grant

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Plaintiff leave to amend the complaint, I think that would

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be a resolution we would be satisfied with.

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new FOIA request, amend the complaint to add in and we

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can, for example, ask for simply all emails sent by

We'd submit a

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Snowden to the Signals Intelligence Oversight and

Compliance Office.
THE COURT:

Why would I have to require you to

or permit you to amend the complaint in order for you to

do that?
MR. LIGHT:

I suppose we can file it as a new

complaint and start all over again with a separate lawsuit

and note it as related.


THE COURT:

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But --

Assuming they didn't just respond in

the time frame that you requested.

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MR. LIGHT:

Right.

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THE COURT:

I mean, they've already collected

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the universe of documents you say, so it shouldn't be too

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hard to respond.
MR. LIGHT:

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Sure.

And that would resolve that

particular issue as to the interpretation.


THE COURT:

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So tell me about the issue.

Why is

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the government wrong about their interpretation of the

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FOIA request that you have submitted?


MR. LIGHT:

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So the government understood these

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words "raised concern" to require some sort of state of

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anxiety or worry.

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is not the only definition that the phrase is susceptible

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to.

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And the problem with that is that that

If Mr. Leopold simply brought something up for a

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discussion, that would be one of the dictionary

definitions that we said it appears from the context of

what Mr. Snowden was saying in the Vanity Fair article is

his concern was about the, was about certain legal issues.

And when he subsequently discussed with the Washington

Post what he meant by "raising concerns," he gave as an

example, he showed co-workers information about a program

called Boundless -- I'm forgetting the name of it, but he

shared information and said what would the public think if

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they saw this on the front page of the newspaper.

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does not express anxiety necessarily.

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And under the NSA's interpretation, we believe they would

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not have determined that to be responsive.

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THE COURT:

That

It's a question.

You asked for any records,

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disclosure of any and all emails written by former NSA

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contractor Edward Snowden.

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we're not just talking about all of his emails -- in which

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Mr. Snowden contacted agency officials, not co-workers but

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officials --

There's no period there, so

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MR. LIGHT:

Right.

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THE COURT:

-- through email to raise concerns

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about NSA programs.

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statement is susceptible to an interpretation of Edward

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Snowden talking to co-workers about an NSA program?

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MR. LIGHT:

And so your argument is that that

No, I'm sorry.

Perhaps that point

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wasn't clear.

I was using that as an example about the

specific thing that he said in that case, which is that

number one, he asked a question; and number two, it didn't

necessarily express anxiety.


So let's just treat that as a hypothetical.

If

that was written in an email rather than something that he

said to a co-worker, what would the public think if they

read about NSA's programs in the newspaper, we believe

that such an email would not be covered by the NSA's

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interpretation.

They would deem that nonresponsive.

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so that is how we're attempting to illustrate why their

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construction -THE COURT:

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And

And you think it would be covered,

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and that's the question I'm asking you, because I'm not

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sure it would be.

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concerns actually prompts a response that relates to

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anything other than I am concerned about this situation,

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says Edward Snowden.

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MR. LIGHT:

I don't understand how to raise

Well, it's a concern in the sense

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that he brought it up for discussion.

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that was, that he perhaps believed was wrong or

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objectionable or thought the public should know about.

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And --

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THE COURT:

It was something

So what is your definition?

believed that to raise concerns --

You

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MR. LIGHT:

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So we cite dictionary definition,

and this is on page --

THE COURT:

Page 6 of your opposition?

MR. LIGHT:

Yes, that's right.

THE COURT:

Concern is a matter of interest or

importance to someone?

MR. LIGHT:

Yes.

THE COURT:

You're saying anything that he's

talking about in the email was obviously of importance to

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him because he's discussing it; right?

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decide whether or not it is, it raises a concern unless

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he's saying something to the effect of this is a problem,

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I am concerned.

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I'm trying to figure out what the line is between, you

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know, what the universe of things that constitutes raising

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a concern is unless we have some sort of statement of

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anxiety to highlight the fact that he's concerned about

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it.

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I mean, who is to

You say you don't have to say that, but

MR. LIGHT:

Right.

Well, I think that what the

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Court needs to do is look at the context of what he was

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raising in the Vanity Fair article, which was he had

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questions about whether the law authorized certain

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activities.

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questions about does the law authorize this, that would be

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raising concerns about it even if it's perhaps in some

And so to the extent that he would be asking

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other context wouldn't be apparent from the face of the

email.

that the 2013 search was conducted.

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And he hadn't made those statements at the time

So the NSA's original search, investigatory


search, they didn't have the benefit of that context -THE COURT:

Well, that's going to the issue of

the second search as well, but just staying on the point

of the reasonableness of the interpretation, what about

this email that they did release?

They released it as

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nonresponsive, and is your argument that even under their

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own definition that qualifies?

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MR. LIGHT:

No.

Under their definition that

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does not qualify.

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and we cited, for example, there was a newspaper article

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in which they referred to that article as having raised

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concerns, and --

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Under our definition it would qualify,

THE COURT:

So then why doesn't that qualify

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under their definition?

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that email something like I don't think this is correct or

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this is a problem?

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MR. LIGHT:

I'm confused.

Doesn't he say in

They characterize the email as

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saying he was just asking a question about what the law

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is, essentially.

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what it would be.

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discussing in Vanity Fair, he believes that NSA is using

And in some other context maybe that's


In the context of what he was

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executive orders to conceal things from Congress and that

he believes that the legal authority they are relying on

is improper.

order and what takes precedence has that color of raising

concerns that it might not otherwise have had.

His questions specifically about executive

And since we know that the NSA did not consider

that responsive, that would suggest that if there are

emails that are similar in nature to that, they would also

consider those nonresponsive.

And so that is the

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relevance of that.

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improper understanding of "raising concerns."

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We believe that the NSA applied an

THE COURT:

All right.

What is the dispute

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about the legal standard that relates to this?

In other

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words, in other words, the Court is supposed to be

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figuring out whether or not the agency's interpretation

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was reasonable or whether or not the agency afforded

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liberal treatment to the party who is requesting or what

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is the appropriate legal standard?

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MR. LIGHT:

So it's not simply that their

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interpretation was reasonable.

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the broadest meaning that the request is susceptible to

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without rendering it unduly vague.

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ambiguous, and arguably in this case Mr. Leopold's request

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is somewhat ambiguous, and there are two definitions, the

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agency is required to go with the broader definition.

But what it needs to be is

And so if it's

And

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we cited to a case last year from the D.C. Circuit, Pita

v. NIH, where the D.C. Circuit said the agency's

interpretation was understandable and that the request was

amenable to the agency's definition; but nevertheless

because of the duty to construe the FOIA request

liberally, the Court said that the interpretation needed

to be construed more broadly than even the interpretation

which the D.C. Circuit thought was understandable.


THE COURT:

But it does have to be ambiguous.

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And you're saying that unambiguously "raising concerns"

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can mean just making a statement about something that's

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important to you?
MR. LIGHT:

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is raising it.

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remark.

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NSA programs.

Well, it's more than statement.

It

So it wouldn't be perhaps an offhanded

And we also, it's limited to NSA programs about

So not every single email he sent, even if it

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relates to NSA business, would be raising a concern about

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an NSA program.

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programs writ large.

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were to interpret this as, you know, everything that

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Edward Snowden sent, that would be -- every email he ever

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sent or received, that would obviously be too broad of a

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request.

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What we're looking at is essentially NSA


And because otherwise if the Court

I do think it's reasonable to apply our

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definition of "raising concerns" within the limitation of

them being about a program.

that, raised a question about and then named a program or

raised a question about the overall authority of the NSA

to conduct certain surveillance, that would be about NSA

programs.

discuss some work I'm doing for the NSA, then obviously it

wouldn't be about an NSA program.

So, for example, if he stated

If he said, you know, let's have lunch to

THE COURT:

I guess what I'm worried about and

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what I don't understand is why you would leave it to the

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government to make those fine distinctions as to whether

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or not he was saying I want to have lunch with you because

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I want to raise concerns about a program or he asks a

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particular question related to the program.

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your FOIA request just be give me everything related to

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Edward Snowden and we'll be the determiner of what raises

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a concern and what doesn't?

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MR. LIGHT:

Why wouldn't

I didn't write the FOIA request.

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And if I had, it would have a little bit different.

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the reason I think that my client used those particular

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words is in order to echo the precise words that Snowden

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used, that is, these words do allow for some ambiguity and

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a little bit of judgment on the government's behalf, and

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that is what's leading to this --

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THE COURT:

And

So if I disagree with you on that,

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do you lose everything?

point about -- in other words, if I agree, for example,

with the government's interpretation of "raising

concerns," do you still have your argument that

nevertheless they, they conducted an inadequate search

here?
MR. LIGHT:

Do you still have this other

Either they conducted an inadequate

search or they inadequately described what they did with

the universe of documents that they collected.

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So we

would still have that argument.


Even if the Court adopted the narrower

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definition, the question remains how did they go about

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applying that definition that they have.

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for specific keywords?

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and to the extent that -- there is some ambiguity.

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there instructions given to the reviewers of the emails

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saying what it is specifically that they are supposed to

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look for.

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did that use the words "raised concerns," or did it say

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something a little bit different.

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Did they search

Did they read every single email,


Were

Were the instructions given to the reviewers,

THE COURT:

Do you have case law that suggests

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that that level of discussion and description is required

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in the government's affidavit?

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MR. LIGHT:

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So what we're looking at here is a

situation where the government did not do a search in

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response to a FOIA request.

And so I think that we're

looking at something a little bit different than what the

Court normally addresses.


And what the -- I wanted to bring to the Court's

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attention a case that the D.C. Circuit just decided about

a week and a half ago called DiBacco, D-i-B-a-c-c-o.

that was, as far as I can tell, the first time the

D.C. Circuit addressed an issue about whether an agency

search was satisfied because of a previous search.

And

There

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have been District Court decisions around the country

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addressing it.
And what the Court said on page 27 -- this was a

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case involving the CIA.

"The Lutz declarations adequately

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explained the congruence between the CIA's Disclosure Act

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search and Oglesby's FOIA request."


And so what I think we need to establish here is

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that congruence in order for the NSA search to be

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adequate.

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one, because their criminal search, they would not have

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been required to construe that term broadly, even if they

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were giving specific instructions to their employees to

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search for --

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And I think that it's not congruent, number

THE COURT:

You don't think that at the time of

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the criminal investigation they were attempting to locate

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all documents related to Edward Snowden and any discussion

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of the NSA?
MR. LIGHT:

Well, they located them, and then

they put together a universe of documents.

And that's not

the issue.

did they -- how liberal was the standard.

the same standard that they are applying in this case, or

did they have a different definition of "raised concerns,"

or were they looking for something else entirely.

It's when they went through those documents,


Are they using

THE COURT:

You mean back in 2013?

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MR. LIGHT:

Right.

And --

So what we would know is a

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little bit more objectively what it is that they did.

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that might look like the NSA submitting an affidavit

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saying these were the instructions that were given to the

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ADS and CIA employees to review, or these were the

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keywords that were used.

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can demonstrate that what they did in 2013 had a

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congruence with Plaintiff's FOIA request, then that would

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allow that search to satisfy.

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So

Those sorts of things if the NSA

But they did not have at that time the benefit

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of the Vanity Fair article which sheds light on

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specifically what Snowden meant when he used that term.

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He hadn't used that term when they did their 2013

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investigation, as far as I know.

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sent emails to the Signals Intelligence Oversight and

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Compliance and to NSA's lawyers and raising legal concerns

He's talking about I

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about the laws, and he talked about that again in the

Washington Post article.

And based on that, the original search that was

done in 2013, the searchers might not have understood the

significance of that until they had that additional

context later.

that Edward Snowden submitted to, for example, the

Inspector General's office would likely be something that

raised concerns that really generally isn't a lot of other

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I would suggest that virtually any email

reason to contact the Inspector General's office.


But the NSA doesn't say there were no emails

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that he sent to the Inspector General's office.

They say

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there were no emails to the Inspector General's office in

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which he raised concerns.

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there's a relatively small universe of documents in which

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he emailed the compliance bodies, that is the Oversight

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Compliance Office, the Signal Intelligence Oversight

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Office, Inspector General, General Counsel, it's a

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relatively small body that it might make sense for the

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Court to simply review in camera and make its own

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determination, if we're talking about a small number of

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emails.

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then perhaps some keywords could be crafted.

If, in fact, it turns out that

If we're talking about larger number of emails,

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THE COURT:

And you're suggesting that they then

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craft them and do the search?

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MR. LIGHT:

Right.

THE COURT:

With respect to that particular --

MR. LIGHT:

Right.

So if this universe of

emails can already be separated into, based on the

different organizational designators, can be separated

into the specific offices that would likely involve

raising concerns, then that would be a pretty

straightforward way to, for them to fulfill their search

duties without placing a large burden on the agency.

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THE COURT:

All right.

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MR. LIGHT:

Unless the Court has any further

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questions, those are all the points I wanted to make.

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THE COURT:

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Mr. Bressler.

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MR. BRESSLER:

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Thank you, Mr. Light.

Thank you, Your Honor.

Excuse

me.
Mr. Light is, respectfully to him, confused

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about a number of things from our papers and our

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declarations which I will try to correct or make clearer

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in my argument now.
This should be a relatively straightforward

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case.

As Your Honor is aware, it sounds like Your Honor

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has the FOIA request in front of her, it was Exhibit A to

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the first declaration of David Sherman that we filed, the

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government filed with the motion for summary judgment.

It

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requested any and all emails written by Edward Snowden in

which Mr. Snowden contacted agency officials through email

to raise concerns about NSA programs.

a number of times it should be viewed through the context

of the Vanity Fair article that purported to quote

Mr. Snowden.

think was made clear in the third most recent Sherman

declaration.

next thing he said was for descriptive information than

And Mr. Light said

That is exactly how the NSA viewed it, as I

In Mr. Leopold's April 8 FOIA request, the

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what I'm asking for.

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April 8, 2013, the same date as the request by Vanity Fair

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--

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THE COURT:

According a report published on

Sorry, it says 2013.

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it's supposed to be the same date?

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MR. BRESSLER:

Do we think

I apologize, Your Honor.

I do

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think it's supposed to be the same date since April 8,

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2013, was before Mr. Snowden had --

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THE COURT:

We think this is a typo?

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MR. BRESSLER:

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THE COURT:

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MR. BRESSLER:

Yes.

Sorry.
What he asked was about this

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report in Vanity Fair Edward Snowden stated that he

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"raised complaints" to NSA.

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words quoting Mr. Snowden apparently in the Vanity Fair

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article, talking about complaints.

So those are Plaintiff's

And then he goes on to

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quote the Article, talking about expressing concerns about

the NSA oversight body, suspect interpretation of the law

and so on.
So I think it is clear in the context of the

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very request that Plaintiff sued over that what we're

talking about here is concerns meaning complaints, "raised

concerns" meaning complaints, worries, beliefs that

something is illegal or improper, not just any matter of

interest.

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If we read "concerns" that he raised any matter

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of interest about NSA programs, as Your Honor implied in

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one of the Court's questions to Mr. Light, that would be

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very broad.

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that it's not a reasonable description of the records to

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be found, and at a minimum it would render those "raised

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concerns" words as we pointed out in our papers to be

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surplusage, which as this Court pointed out in their

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Conservation Forest v. Ash, rendering those words mere

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surplusages a result that is an anathema to established

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principles of reasoned interpretation.

I would suggest that it would be so broad

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So I think the NSA's interpretation of the

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request is really the only plausible interpretation.

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not ambiguous; "raised concerns" means complaints,

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worries, concerns that something is illegal or immoral or

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wrong in emails to NSA officials.

It's

That is what the agency

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looked for.

And --

THE COURT:

But here is my question about your

position:

I understand it, but how is it then that the

email that was released publicly and provided to

Mr. Leopold just as a courtesy, according to the NSA, how

is it that that didn't cut it when Mr. Snowden in that

email says I'm not entirely certain but this does not seem

correct?
MR. BRESSLER:

He wasn't talking about NSA

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programs.

I mean, maybe somehow reading between the lines

11

outside the four corners of the document or the request

12

Plaintiff's counsel or his client thinks that that evinces

13

a concern, but what he said is I'm confused here.

14

about executive orders versus statutes versus regulations,

15

referring to some sort of PowerPoint or something that he

16

had seen.

17

the force and effect of law but right, they can't trump a

18

statute.

What

And the response was executive orders can have

There's nothing in there about NSA programs.


However, in I think an abundance of caution the

19
20

agency did provide it, and it provided it because it was

21

the closest thing it found to being anything responsive to

22

what Mr. Snowden himself described in an NBC interview,

23

which is the first time that the agency publicly released

24

that record, or what Mr. Leopold was describing in its

25

request.

23
1

I would also note on that point for Your Honor

that it is undisputed that that email does not raise

concerns about NSA programs.

is because the government, the NSA stated in its statement

of material facts not in dispute that email did not raise

concerns about NSA programs, and Plaintiff did not state

that that statement was disputed.

The reason it's undisputed

So undisputed.

I would also note that in his own statement of

material facts not in dispute Plaintiff stated that as of

10

that date, which was after this email had been produced,

11

no responsive records had been produced to plaintiff.

12

it would appear -- I mean, I'm not trying to play gotcha

13

here, but I think it is fair to say that Plaintiff has

14

waived any argument under the local rules of this Court

15

that that email raised concerns about NSA programs as

16

specified in the request.

17

THE COURT:

So

Although that might be so, I guess

18

I'm just trying to understand the implications for what

19

the NSA considered to be fitting within its definition and

20

what it didn't.

21

Plaintiff may agree with you, because I think I heard even

22

here today that Plaintiff suggested that under your

23

definition this email doesn't come in, but it would under

24

the definition that Plaintiff is positing, I'm still

25

trying to understand why it doesn't come in under your

So notwithstanding the fact that

24
1

definition.

And what you're saying is the NSA -- that

there's no mention of an NSA program in this email?

the USS whatever this is, USSID 18 training, does that

have something to do with an NSA program?


MR. BRESSLER:

Is

While I would think that refers

to a training of how to apply a United States Signals

Intelligence directive, I am not offhand familiar with

that.

Mr. Snowden may have been concerned, as other people have

10

been, with the use of Executive Order 12333, which governs

11

certain NSA activities.

12

I think Plaintiff has stated in his papers that

That's not within that email.

What the email said is I saw the training, it

13

talked about this point of law.

14

executive order trump a statute?

15

I think the agency did not see there a concern being

16

raised about NSA programs.

17

THE COURT:

18

MR. BRESSLER:

19

THE COURT:

20

MR. BRESSLER:

Is that correct, can an


And the response was no.

All right.
I can also -- well, I'm sorry.

No, please continue.


Well, turning to another point on

21

which I think Mr. Light was somewhat confused, the --

22

Dr. Sherman's declarations used the word "search" in some

23

cases where perhaps he should have used the word

24

"collection."

25

To provide some context here, I think the

25
1

government filed Dr. Sherman's declaration with a motion

for summary judgment that was, standing on its own,

appropriate and adequate to serve as a basis for summary

judgment.

at it in his Rule 56(d) motion which Your Honor denied,

Dr. Sherman filed a second declaration responding to some

of those, and then when he finally opposed and cross-moved

on summary judgment, provided some further clarification.

So there is a lot I think more detail than even is

10
11

But because Plaintiff threw a bunch of argument

necessary here.
THE COURT:

So there are three Sherman

12

declarations, and the second one is in connection with the

13

other motion?

14

MR. BRESSLER:

That is correct.

What we did,

15

Your Honor, note in our I think it was reply and

16

cross-opposition that we were incorporating that

17

declaration and that filing by reference because there was

18

some kind of crossover between them.

19

THE COURT:

All right.

20

MR. BRESSLER:

So referring I think to the

21

declaration filed in connection with the 56(d) motion,

22

Dr. Sherman's declaration of January 14, 2015, in

23

Paragraph 5 -- take a step back.

24
25

The NSA as part of the investigatory collection


conducted by the Associate Director of Security and

26
1

Counterintelligence, Plaintiff is not disputing, we all

agree they collected the entire universe of potentially

responsive records.
THE COURT:

Sorry, it wasn't responsive at that

point.

You just mean they collected everything having to

do with Edward Snowden.

MR. BRESSLER:

THE COURT:

MR. BRESSLER:

Yes.

Back in 2013.
All of his emails, which would

10

include any emails he sent that could be responsive to

11

this request, among other things.

12

January 2015 declaration, Dr. Sherman attests that in

13

reviewing the results of the agency searches, which means

14

that collection, the FOIA personnel, personnel in the

15

associate directorate for policy and records reviewed

16

first all emails sent by Mr. Snowden that remained on the

17

systems; and second, the search is done by all NSA offices

18

to which an email raising concerns about NSA programs

19

reasonably could be expected to have been sent.

20

Paragraph 5 of that

So the FOIA staff, not -- in response to this

21

request, following this request, searched through the

22

entire pot, the entire universe of anything that could be

23

responsive looking for anything that is responsive.

24
25

THE COURT:
conducted?

So there was a second search

27
1

MR. BRESSLER:

Yes.

I believe there were many

searches very carefully conducted by human beings.

not in the declarations, but these were manual "eyeball on

every email" searches conducted by people.

THE COURT:

It's

Why is it not in the declaration?

Isn't that what the declaration is supposed to do, tell us

how the searches were done?

8
9

MR. BRESSLER:

Again, Your Honor, I think we

felt that it was in the declaration by making it clear

10

that the FOIA staff reviewed all of those emails, reviewed

11

the results of those searches.

12

recent -- I'm sorry.

13

It was also in the most

In the first declaration, which was the

14

September 12, 2014 declaration, Paragraph 17, "After

15

receiving Plaintiff's FOIA request, NSA's FOIA office

16

reviewed the aforementioned searches conducted and the

17

results of these searches."

18

So the FOIA office looked at everything that was

19

found in response to the law enforcement search or

20

collection and determined there is nothing responsive.

21

could it have been stated more clearly as I am stating it

22

here today?

23

declarations I would submit should be adequate to make it

24

clear that there was a search done, again, after receiving

25

Plaintiff's FOIA request.

Yes.

So

But I think what was in the

28
THE COURT:

1
2

What paragraph was that that you

just mentioned?
MR. BRESSLER:

This is bottom of page 7,

beginning of Paragraph 17 of the September 12, 2014

declaration.
THE COURT:

6
7

So they reviewed the searches

conducted and the results of those searches.

MR. BRESSLER:

THE COURT:

Right.

So you agree with Mr. Light's

10

interpretation in the sense that in 2013 the universe was

11

compiled.

12

MR. BRESSLER:

13

THE COURT:

Yes.

But you're saying in response to the

14

FOIA request the NSA's FOIA office then took that universe

15

and looked for the "raising concerns" email.

16

MR. BRESSLER:

17

THE COURT:

18

MR. BRESSLER:

Yes.

All right.
And to be clear, if I can parse

19

that sentence, they reviewed the aforementioned searches

20

conducted.

21

enforcement collection of information and said is this

22

sufficient for purposes of responding to this FOIA

23

request.

24

agrees, they had collected the entire universe of

25

potentially responsive, you know, if it's going to be

So in other words, they looked back at the law

They determined yes, it is, because as Plaintiff

29
1

anywhere, it's going to be in there.

those searches refers to actually going back and looking

at every email.

THE COURT:

Right.

And the results of

But what Mr. Light says is

what the declaration doesn't have in it next is in order

to make the determination of what counted as raising

concerns, the FOIA office used the following search terms

or the FOIA office was directed to look for these words

coming from Mr. Snowden or some way to assess the extent

10

to which the FOIA office in doing this search you're now

11

saying they did actually made the determination of what

12

counted as raising concerns within the universe of

13

documents that they were perusing.

14

MR. BRESSLER:

Well, Your Honor, I would -- you

15

may be saying that, but I would disagree with that point

16

and turn to the most recent declaration in which -- I

17

mean, there's no discussion of keywords.

18

required to use keywords and therefore isn't required to

19

describe keywords because people on the FOIA staff

20

reviewed individually every email, every word of every

21

email, and in the -- it's the May 7, 2015 declaration that

22

was filed with the government's cross-opposition and

23

reply, Paragraph 4, it explains -- Plaintiff has cited to

24

this -- that NSA interpreted the term "raised concerns" in

25

the context of the additional descriptive information

The agency isn't

30
1

provided in the request, the Vanity Fair report in which

he says "I raised complaints, expressed concerns about the

suspect interpretation of the law."


Given this context, the agency interpreted the

4
5

phrase "raised concerns" in the sense of creating or

bringing to light a worried feeling or state of anxiety

about NSA programs rather than bringing up for discussion

or consideration matter of interest or importance.

that to be clear they were quoting the alternate

And

10

definitions that Plaintiff himself brought up I think in

11

the government's cross-opposition brief.


We cited to some other dictionaries that, you

12
13

know, concern, the word "concern" can mean a lot of

14

things.

15

Pepco is a public utility concern.

16

what he meant here.

17

Concern can mean a kind of business, right.

THE COURT:

That's obviously not

The only problem with this, I do

18

understand your point, but obviously this statement in

19

Paragraph 4 related to the agency's interpretation as a

20

post hoc discussion because the notion of the debate

21

between the two of you related to what "concern" is

22

supposed to mean wasn't on the table at the time the

23

agency was conducting this particular review.

24
25

So what we're not totally clear on I think as a


result of the declaration is exactly what the agency

31
1

officers who were doing the search were told

contemporaneously to look for.

interpret this to mean, this Paragraph 4, that they were

told to search for anything that suggested that

Mr. Snowden was complaining about an NSA program or had an

issue with an NSA program in a negative way or was worried

about an NSA program.

happened?

Is that what you're saying

MR. BRESSLER:

I mean, I guess I

I think that is essentially

10

correct, Your Honor.

11

correct this declaration is from this May, not from the

12

date in which the search was conducted.

13

declaration prepared ahead of time, but it is still based

14

on Dr. Sherman's testimony under oath, and it is due

15

appropriate deference under established FOIA case law.

16

There is no reason to suspect that that's not what was

17

done or that that's not, you know, was not attested to in

18

good faith.
THE COURT:

19

And I would point out, you are

All right.

It wasn't a

But what's not in here

20

is something interesting, which is the, what does this

21

universe of documents look like.

22

should the Court just say since we have this dispute over

23

"raised concerns" and what's in and what's out, bring them

24

in, NSA.

25

or what?

And to what extent

Are we talking about thousands of documents here

32
MR. BRESSLER:

I think the reason the Court

should not do that is the D.C. Circuit -- and I will talk

about how many documents there are -- but as the D.C.

Circuit has made clear and this Court has made clear a

number of times, what Plaintiff is suggesting is

essentially it can't hurt to do it, if it's not too many

it can't hurt to do an in camera review.

says, No, you shouldn't do it just because it can't hurt.

The Court should only do it when there's some reason to

10

The D.C. Circuit

suspect a problem, which there is no reason here.


And, of course, Plaintiff has no right to

11
12

anything about nonresponsive documents or information

13

about nonresponsive documents.

14

suggested, Mr. Leopold wants to file, make another FOIA

15

request for every email that Plaintiff said he sent, he

16

can do that.

17

Your Honor is aware that this case now also includes,

18

because the Court permitted Plaintiff to supplement his

19

complaint, a separate subsequent FOIA request that was

20

made after this case was filed in which Mr. Leopold asked

21

for 18 categories of various documents related to -- still

22

didn't ask for all of Mr. Snowden's emails, but he asked

23

for documents responding to the press, searches that were

24

done.

25

request under a schedule agreed to by the parties and

If, as Your Honor

In fact, Plaintiff may already be aware,

The agency is in the process of processing that

33
1
2

entered by Your Honor.


And in the most recent one there were media

inquiries, which included FOIA requests from at least one

other member of the media who asked for all of his emails

other than the one that has been provided to Plaintiff and

publicly released, it was denied under, you know, various

exemptions, portions of Exemption 7, 6.

8
9
10

THE COURT:

Denied by the agency, not in

litigation?
MR. BRESSLER:

Yes, not I believe in litigation,

11

but with that as a prologue, he can do that, we would

12

object to it being part of this case because this case has

13

enough going on already.

14

satisfy him, although Mr. Light seems skeptical.

15

And maybe the agency would

Here the emails from Mr. Snowden, total emails,

16

not emails raising concerns about NSA programs but the

17

total emails available when the search was conducted back

18

when materials were collected in 2013 -- and to be clear,

19

when I talk about all emails or the universe of emails, I

20

can only talk about those that were available to the

21

agency on its systems or in its files at the time of the

22

FOIA request, which included all of those that were

23

available back in 2013 which they were collected.

24

Mr. Snowden sent zero emails to the Office of

25

Inspector General, so there's nothing for Your Honor to

34
1

review.

Mr. Snowden sent zero emails to the Office of the

Director of Compliance for the NSA, so nothing to review.

Mr. Snowden sent one email to the Office of General

Counsel, which is the email that was provided to Plaintiff

and has been publicly released.


So looking at those likely candidates for the

6
7

receipt of a, quote/unquote, whistleblower, there was

nothing.

the Signals Intelligence Directorate.

There's a separate Office of Compliance within


Mr. Snowden did

10

have a handful of emails to them.

They concerned him

11

doing his job of providing tech support to them, not

12

raising concerns about NSA programs.

13

number of emails in the single digits, I believe three.

14

And of course, like all of us do at work who use email,

15

Mr. Snowden sent emails.

And that was some

So if you expand this to talk about any emails

16
17

sent to the threat operations center where he was working

18

in Hawaii, then the number of total emails increases to

19

the hundreds or thousands of emails because they are the

20

sorts of emails that one would expect being sent about

21

work and nonwork subjects to colleagues.

22

raised concerns.

23

concerns about NSA programs.

None of them were even officials raising

We know what "raised concerns" means to the

24
25

None of them

agency.

It means I think the only plausible reading of

35
1

the FOIA request.

senior government official, which we have no reason

whatsoever to cast aspersions on, that they didn't find

any.

to waste its time repeating the task of trolling through

those emails.

And we know in sworn testimony of a

There aren't any.

There is no reason for the Court

I would also note the alleged correspondence

that Mr. Light referred to that he brought up in his

reply, so it's not something that we had a chance to

10

respond to on the papers, but apparently Mr. Snowden was

11

quoted in the Washington Post saying that he had

12

communicated to people about a supposed code word

13

Boundless Informant program where he said what do you

14

think would happen, how would the public react if this was

15

on the front page?

16

Not sure that would be, you know, necessarily

17

responsive, but the agency wouldn't consider that

18

responsive.

19

think the American, you know, the senator said prior to

20

Mr. Snowden doing what he did, the American people would

21

have feelings about this when it becomes known.

22

had located such an email, that would have been considered

23

responsive.

24

concerns to suggest there would be a negative reaction if

25

something, you know, became public.

It's not an email where it said, How do you

If they

That would have been considered raising

They didn't find any

36
1
2

such email about Boundless Informant or anything else.


THE COURT:

So let me just be clear on that

point, because Mr. Light offered that as a hypothetical in

which he had understood the government would find that to

be nonresponsive, found such a scenario to be

nonresponsive, and you're saying it would have responsive

but there is no such email.

8
9

MR. BRESSLER:

Yes.

That would have been --

that would have evinced, I think, concern or a complaint

10

about what they are doing.

11

hypotheticals, it's hard to know, but if he said, Can you

12

believe this, how do you think the public would react

13

tomorrow if this was on the front page of the Washington

14

Post, then that I think would express concern, would have

15

been understood to express concern within the four corners

16

of the email, and it did not exist.

17

I mean, speaking of

At a minimum the agency responded here in an

18

abundance of caution.

That's why it produced the other

19

email, the already publicly available email to Plaintiff

20

about the relative hierarchies of legal authority.

21

a minimum, such a "what if this was on the front page"

22

email would have been included in I'll call it a penumbra

23

of unresponsive material, but there was nothing like that.

24

THE COURT:

All right.

25

MR. BRESSLER:

So at

Thank you, Mr. Bressler.

Thank you.

37
1

THE COURT:

Mr. Light.

MR. LIGHT:

Thank you, Your Honor.

Since

defense counsel presented a few new facts today in order

for the Court to consider them in ruling on the summary

judgment, I think we need to be reduced to a declaration

form.

For example, if the Court wants to consider

whether or not there are emails, any emails at all that

were sent to various compliance offices rather than

10

relying on argument of counsel, those should be and can

11

probably very simply be presented in a declaration.

12

I'm also skeptical about the claim that there

13

was a second search which involved looking at the entire

14

universe of documents, because the way that Dr. Sherman

15

described it as looking at the search and the results,

16

which would suggest that there was perhaps a document

17

stating what the results were that were looked at.

18

And if you look at the timeline of this,

19

Mr. Leopold's request was sent April 9 or it was received

20

on April 9.

21

So in that two and a half months, I don't know how long

22

Mr. Leopold was in the queue for, but it seems hard to

23

believe that the agency's staff looked at every single

24

Snowden email during that two and a half months.

25

And NSA had its final response on June 23.

THE COURT:

Of course, that's what the law

38
1

requires them to do; right?

MR. LIGHT:

Correct.

THE COURT:

There's a very restricted time frame

around FOIA requests, as you've often reminded me.


MR. LIGHT:

Yes.

And there is not a clear

statement in the declaration that that's what happened.

And given that the agency seems to be running delays over

a year now, it's hard to believe that the agency did

anything during that time other than relying on the

10

previous results rather than looking at everything.


But this point could be very simply cleared up

11
12

by statement from Dr. Sherman saying specifically what it

13

is that happened rather than us sort of speculating on the

14

phrase that he used, which may or may not have been clear

15

or used the correct word "collect" instead of "search."

16

So I think that some additional declarations from the

17

defendants would go a long way in clarifying some of the

18

factual issues and not require the Court to speculate on

19

what was actually said.


Those are the only additional points I have to

20
21
22

raise.
THE COURT:

Well, I mean I'm just following up

23

on that point.

Isn't your argument just that without that

24

information in the form of a declaration they lose, or are

25

you saying that I should order them to produce such a

39
1

declaration so that they can support their own summary

judgment motion?
MR. LIGHT:

Well, the Court would, at this stage

if the Court were to decide today, would need to deny

their summary judgment motion; but typically what happens

in cases when the summary judgment motion is denied is

that it's without prejudice for the agency to submit

further support for it.


If the problem is the inadequacy of the

9
10

description as opposed to the failure to actually conduct

11

the search, that is -- if it was clear that the search --

12

if it's clear what search was conducted and the Court

13

finds that the search was inadequate, then it would be

14

remanded.

15

clear as to what happened, then typically what would

16

happen is the Court would need to deny it without

17

prejudice and permit the government to refile.

If the issue is that the declarations are not

But just in the interest of judicial economy, it

18
19

may perhaps be useful rather than the Court writing a

20

decision saying that perhaps the NSA is willing to

21

voluntarily provide additional declarations to supplement

22

the record.

23

job.

Certainly it might facilitate this Court's

24

THE COURT:

Thank you, Mr. Light.

25

So let me ask you, Mr. Bressler, are you

40
1

interested in the opportunity to provide additional

declarations?

you don't think they are necessary, but...

I understand your baseline point being that

MR. BRESSLER:

We don't think they are

necessary, and we don't think, I don't think it is -- we

don't think it's appropriate.

Honor what's appropriate.

should order us to do that.

us a short period of time, I confess I'm going on vacation

10

shortly, which was raised in the papers rescheduling this

11

hearing to accommodate both counsel, but some period of

12

time in which to supplement the record would be fine.

13

haven't had an opportunity to discuss this with my client.

14

Obviously it's up to Your

But I do not think the Court


I think if Your Honor gives

I would note, however, that I'm an officer of

15

the Court, I've consulted with my client and the Court of

16

Appeals and this Court, especially the Court of Appeals

17

not infrequently rely on representations of counsel and

18

especially government counsel, so I don't think there

19

would be a problem in relying on averments at oral

20

argument or at the hearing that I've been informed by the

21

agency that there are no emails to OIG, no emails to the

22

Director of Compliance, just the one to the Office of

23

General Counsel.

24
25

As far as the suggestion that it's hard to


believe that what the declarant said could be true, if he

41
1

said it and there's nothing on the other, you know, side

of the scales, then unless there's some reason to doubt

him that should end the inquiry.

one of the things he said when, in his May declaration,

which I left on the table over there, but I believe that

Dr. Sherman said since that time we've conducted

additional searches.
So the story of this case has been respectfully

8
9

But I want to be clear,

the story of Mr. Light perhaps skillfully throwing lots of

10

arguments at the wall here and seeing which, if any, of

11

them stick, and he has concluded that entering into this

12

hearing there were two of them left.

13

declarations sought to respond to each of them.

14

haven't filed any declarations since the newest brief or

15

reply brief or, of course, this hearing, but what there

16

has been, you know, I think additional study and looking

17

at the emails to make sure that everything has been done

18

properly.

Each of the
We

19

What Dr. Sherman attested to in May was that as

20

of the time of that declaration we looked at every single

21

email and determined that there's nothing there that is

22

conceivably responsive.

23

THE COURT:

Under your definition.

24

MR. BRESSLER:

25

THE COURT:

Yes.

So really from a government's

42
1

perspective, the only dispute is the differences with

respect to how you interpret "to raise concerns."


MR. BRESSLER:

Yes, except I fail to see how

that could really be in dispute given the text of the FOIA

request itself.

Honor pointed out, I'd like to see all of Mr. Snowden's

emails.

raised concerns.

or would be held I think, under LaCedra to the standard of

10
11

This is not a case where he said, as Your

I'm especially interested in ones in which he


He said, And therefore we might be held

providing all of the emails.


What he asked for was all emails in which he

12

raised concerns about NSA programs to agency officials.

13

And then in the next line of the FOIA request described

14

that with Mr. Snowden's own words as quoted in Vanity Fair

15

about complaints.

So I don't see Plaintiff's reading as

16

being plausible.

If it was, if it did apply, then I don't

17

know how the agency would apply that.

18

as we said in our papers, what's a matter of interest or

19

importance to Mr. Snowden?

20

How do they know,

Your Honor suggested in the Court's questions to

21

Plaintiff's counsel that would be anything he wrote about

22

in an email; right?

23

therefore it would be all of his emails about anything to

24

do with the NSA, which would essentially render -- again

25

that raised concerns for a surplusage, which I don't think

I think that's correct.

And

43
1

is what Mr. Leopold --

THE COURT:

respect to the interpretation.

second point, which is you think the declarations

sufficiently describe the fact that you weren't relying on

the 2013 search and the findings of that search, but, in

fact, the NSA FOIA office did an additional search in

response to Mr. Leopold's request that began with the

universe of 2013 documents but that looked for the raised

10
11

Right.

Which is your argument with


I'm just getting to the

concerns emails.
MR. BRESSLER:

Yes.

They relied on the

12

extensive 2013 collection for the stack of emails to

13

search through, and, of course, that included things other

14

than emails.

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And then they reviewed all of those emails to see if there

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was anything raising concerns --

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But they relied on that stack of emails.

THE COURT:

Right.

And so the second issue from

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your perspective is there is not a dispute over whether or

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not the government can rely on a previous 201 search,

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because that's not what you did in this case.

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separate search.

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MR. BRESSLER:

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THE COURT:

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MR. BRESSLER:

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THE COURT:

You did a

Yes.

All right.

Okay.

Thank you.

Thank you, Your Honor.

Mr. Light, I don't know if you have

44
1

anything more.

MR. LIGHT:

Nothing further, Your Honor.

THE COURT:

All right.

Well, I will think about

this.

here today and on the papers under advisement and will

issue a written order.

I will look through these things, take the argument

Thank you.

(Proceedings adjourned at 4:11 PM)

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CERTIFICATE OF OFFICIAL COURT REPORTER

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I, Barbara DeVico, certify that the foregoing is

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a correct transcript from the record of proceedings in the

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above-entitled matter.

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______________________________

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SIGNATURE OF COURT REPORTER

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8-14-15
DATE

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