1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD, : :

Plaintiff, : CA No. 14-919 :

v. : :

NATIONAL SECURITY AGENCY, : :

Defendant. :-------------------------------------------------------

TRANSCRIPT OF MOTIONS HEARING

BEFORE THE HONORABLE KETANJI BROWN JACKSON

UNITED STATES DISTRICT JUDGE

Tuesday, August 11, 2015

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

Proceedings reported by machine shorthand, transcriptproduced by computer-aided transcription.

BARBARA DE VICO, FOCR, CRR, RMR (202)354-3118 Room 6509

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2

P R O C E E D I N G S

DEPUTY CLERK: Your Honor, this is Civil Case

14-919, Jason Leopold v. National Security Agency. I'm

going to ask counsel to please come forward and identify

yourselves for the record.

MR. LIGHT: Good afternoon, Your Honor. Jeffrey

Light on behalf of plaintiff, Jason Leopold.

THE COURT: Good afternoon, Mr. Light.

MR. BRESSLER: Good afternoon, Your Honor.

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

behalf of Defendant the National Security Agency.

THE COURT: Good afternoon, Mr. Bressler. This

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

cross motions for summary judgment regarding Plaintiff's

FOIA request dated April 8, 2014.

I am familiar with your arguments, but this is

an opportunity for you to provide an oral presentation and

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

pending motions. As is my ordinary procedure, I don't

intend to impose strict time limits. I typically allow

the plaintiff to speak first, giving an overview of the

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

judgment, so the plaintiff can set forth its arguments

related to why summary judgment should be granted in the

plaintiff's favor.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

3

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. And then we will essentially

go back and forth until we're all exhausted. 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

in Vanity Fair in which Edward Snowden stated that he had

raised concerns with the NSA prior to disclosing

classified information, Plaintiff Jason Leopold submitted

a FOIA request asking the NSA for those emails in which

Snowden raised concerns.

After a significant amount of briefing, the

parties now seem to have been able to distill the issues

to two things. The first one is whether the agency

properly interpreted Mr. Leopold's request of the phrase

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

whether it was appropriate for the NSA upon receiving the

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

as part of a criminal investigation rather than conducting

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

First I'd like to emphasize something that I

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

4

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

that universe of documents. They went to certain offices,

they asked individuals to search their email addresses.

But having established that universe of

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

parties concerns how did we get from that universe of

documents that are potentially responsive to the NSA's

conclusion that none of those documents are, in fact,

responsive to Mr. Leopold's FOIA request. Most of what

the --

THE COURT: So it's your contention that in

gathering that universe of documents the NSA did not do as

declarant Sherman suggests, which is look for the

documents in which Edward Snowden raised concerns about

NSA programs?

MR. LIGHT: So what it appears happened was

during that criminal investigation there was a universe of

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

5

documents that are potentially responsive, and he

describes how those documents were found. I think

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. And that all of those documents were

passed along to the Associate Director of Security and

Counterintelligence.

And the issue we have is how did the Associate

Director of Security and Counterintelligence, having

received all those documents, search through them. Not

how did the Associate Director of Security and

Counterintelligence collect those documents.

And it is not clear from their declarations how

the Associate Director of Security and Counterintelligence

went about doing that. Whether these documents were

primarily in electronic format or paper, if they were in

electronic format what specific keywords would have been

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

concerns" were used.

So, for example, the phrase "raised concern"

could have been a keyword or "constitutionality" could

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

were used. We don't know whether all of these documents

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

were specifically read by humans or whether they were

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

database. And the problem is because the term "raised

concerns" is, the parties have a dispute about exactly

what that means. And it is perhaps not as susceptible to

objective criteria as a request that specifically said,

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

certain time period. We need more information about how

that happened in order to determine whether the way that

they went about that search was proper or not.

THE COURT: Can I just ask you a question?

MR. LIGHT: Yes.

THE COURT: Why wouldn't Mr. Leopold just submit

another FOIA request that said, you know, all the

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

which Edward Snowden made any statement about NSA's

programs? It seems odd to me that all of this litigation

is going on with respect to the meaning of "raised

concerns" when there are other ways that requests could

have been stated and perhaps still could be stated.

MR. LIGHT: If the Court is inclined to grant

Plaintiff leave to amend the complaint, I think that would

be a resolution we would be satisfied with. We'd submit a

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

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

7

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. But --

THE COURT: Assuming they didn't just respond in

the time frame that you requested.

MR. LIGHT: Right.

THE COURT: I mean, they've already collected

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

hard to respond.

MR. LIGHT: Sure. And that would resolve that

particular issue as to the interpretation.

THE COURT: So tell me about the issue. Why is

the government wrong about their interpretation of the

FOIA request that you have submitted?

MR. LIGHT: So the government understood these

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

anxiety or worry. And the problem with that is that that

is not the only definition that the phrase is susceptible

to.

If Mr. Leopold simply brought something up for a

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

8

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

they saw this on the front page of the newspaper. That

does not express anxiety necessarily. It's a question.

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

not have determined that to be responsive.

THE COURT: You asked for any records,

disclosure of any and all emails written by former NSA

contractor Edward Snowden. There's no period there, so

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

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

officials --

MR. LIGHT: Right.

THE COURT: -- through email to raise concerns

about NSA programs. And so your argument is that that

statement is susceptible to an interpretation of Edward

Snowden talking to co-workers about an NSA program?

MR. LIGHT: No, I'm sorry. Perhaps that point

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

9

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

interpretation. They would deem that nonresponsive. And

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

construction --

THE COURT: And you think it would be covered,

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

sure it would be. I don't understand how to raise

concerns actually prompts a response that relates to

anything other than I am concerned about this situation,

says Edward Snowden.

MR. LIGHT: Well, it's a concern in the sense

that he brought it up for discussion. It was something

that was, that he perhaps believed was wrong or

objectionable or thought the public should know about.

And --

THE COURT: So what is your definition? You

believed that to raise concerns --

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10

MR. LIGHT: 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

him because he's discussing it; right? I mean, who is to

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

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

I am concerned. You say you don't have to say that, but

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

know, what the universe of things that constitutes raising

a concern is unless we have some sort of statement of

anxiety to highlight the fact that he's concerned about

it.

MR. LIGHT: Right. Well, I think that what the

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

raising in the Vanity Fair article, which was he had

questions about whether the law authorized certain

activities. And so to the extent that he would be asking

questions about does the law authorize this, that would be

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

11

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

email. And he hadn't made those statements at the time

that the 2013 search was conducted.

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

nonresponsive, and is your argument that even under their

own definition that qualifies?

MR. LIGHT: No. Under their definition that

does not qualify. Under our definition it would qualify,

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

in which they referred to that article as having raised

concerns, and --

THE COURT: So then why doesn't that qualify

under their definition? I'm confused. Doesn't he say in

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

this is a problem?

MR. LIGHT: They characterize the email as

saying he was just asking a question about what the law

is, essentially. And in some other context maybe that's

what it would be. In the context of what he was

discussing in Vanity Fair, he believes that NSA is using

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12

executive orders to conceal things from Congress and that

he believes that the legal authority they are relying on

is improper. His questions specifically about executive

order and what takes precedence has that color of raising

concerns that it might not otherwise have had.

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

relevance of that. We believe that the NSA applied an

improper understanding of "raising concerns."

THE COURT: All right. What is the dispute

about the legal standard that relates to this? In other

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

figuring out whether or not the agency's interpretation

was reasonable or whether or not the agency afforded

liberal treatment to the party who is requesting or what

is the appropriate legal standard?

MR. LIGHT: So it's not simply that their

interpretation was reasonable. But what it needs to be is

the broadest meaning that the request is susceptible to

without rendering it unduly vague. And so if it's

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

is somewhat ambiguous, and there are two definitions, the

agency is required to go with the broader definition. And

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

13

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.

And you're saying that unambiguously "raising concerns"

can mean just making a statement about something that's

important to you?

MR. LIGHT: Well, it's more than statement. It

is raising it. So it wouldn't be perhaps an offhanded

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

NSA programs.

So not every single email he sent, even if it

relates to NSA business, would be raising a concern about

an NSA program. What we're looking at is essentially NSA

programs writ large. And because otherwise if the Court

were to interpret this as, you know, everything that

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

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

request.

I do think it's reasonable to apply our

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

14

definition of "raising concerns" within the limitation of

them being about a program. So, for example, if he stated

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

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

wouldn't be about an NSA program.

THE COURT: I guess what I'm worried about and

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

government to make those fine distinctions as to whether

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

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

particular question related to the program. Why wouldn't

your FOIA request just be give me everything related to

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

a concern and what doesn't?

MR. LIGHT: I didn't write the FOIA request.

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

the reason I think that my client used those particular

words is in order to echo the precise words that Snowden

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

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

that is what's leading to this --

THE COURT: So if I disagree with you on that,

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15

do you lose everything? Do you still have this other

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: Either they conducted an inadequate

search or they inadequately described what they did with

the universe of documents that they collected. So we

would still have that argument.

Even if the Court adopted the narrower

definition, the question remains how did they go about

applying that definition that they have. Did they search

for specific keywords? Did they read every single email,

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

there instructions given to the reviewers of the emails

saying what it is specifically that they are supposed to

look for. Were the instructions given to the reviewers,

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

something a little bit different.

THE COURT: Do you have case law that suggests

that that level of discussion and description is required

in the government's affidavit?

MR. LIGHT: So what we're looking at here is a

situation where the government did not do a search in

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

16

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

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. And

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. There

have been District Court decisions around the country

addressing it.

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

case involving the CIA. "The Lutz declarations adequately

explained the congruence between the CIA's Disclosure Act

search and Oglesby's FOIA request."

And so what I think we need to establish here is

that congruence in order for the NSA search to be

adequate. And I think that it's not congruent, number

one, because their criminal search, they would not have

been required to construe that term broadly, even if they

were giving specific instructions to their employees to

search for --

THE COURT: You don't think that at the time of

the criminal investigation they were attempting to locate

all documents related to Edward Snowden and any discussion

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

17

of the NSA?

MR. LIGHT: Well, they located them, and then

they put together a universe of documents. And that's not

the issue. It's when they went through those documents,

did they -- how liberal was the standard. Are they using

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. And --

THE COURT: You mean back in 2013?

MR. LIGHT: Right. So what we would know is a

little bit more objectively what it is that they did. So

that might look like the NSA submitting an affidavit

saying these were the instructions that were given to the

ADS and CIA employees to review, or these were the

keywords that were used. Those sorts of things if the NSA

can demonstrate that what they did in 2013 had a

congruence with Plaintiff's FOIA request, then that would

allow that search to satisfy.

But they did not have at that time the benefit

of the Vanity Fair article which sheds light on

specifically what Snowden meant when he used that term.

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

investigation, as far as I know. He's talking about I

sent emails to the Signals Intelligence Oversight and

Compliance and to NSA's lawyers and raising legal concerns

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

18

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. I would suggest that virtually any email

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

reason to contact the Inspector General's office.

But the NSA doesn't say there were no emails

that he sent to the Inspector General's office. They say

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

which he raised concerns. If, in fact, it turns out that

there's a relatively small universe of documents in which

he emailed the compliance bodies, that is the Oversight

Compliance Office, the Signal Intelligence Oversight

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

relatively small body that it might make sense for the

Court to simply review in camera and make its own

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

emails. If we're talking about larger number of emails,

then perhaps some keywords could be crafted.

THE COURT: And you're suggesting that they then

craft them and do the search?

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

19

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.

THE COURT: All right.

MR. LIGHT: Unless the Court has any further

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

THE COURT: Thank you, Mr. Light.

Mr. Bressler.

MR. BRESSLER: Thank you, Your Honor. Excuse

me.

Mr. Light is, respectfully to him, confused

about a number of things from our papers and our

declarations which I will try to correct or make clearer

in my argument now.

This should be a relatively straightforward

case. As Your Honor is aware, it sounds like Your Honor

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

the first declaration of David Sherman that we filed, the

government filed with the motion for summary judgment. It

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

20

requested any and all emails written by Edward Snowden in

which Mr. Snowden contacted agency officials through email

to raise concerns about NSA programs. And Mr. Light said

a number of times it should be viewed through the context

of the Vanity Fair article that purported to quote

Mr. Snowden. That is exactly how the NSA viewed it, as I

think was made clear in the third most recent Sherman

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

next thing he said was for descriptive information than

what I'm asking for. According a report published on

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

--

THE COURT: Sorry, it says 2013. Do we think

it's supposed to be the same date?

MR. BRESSLER: I apologize, Your Honor. I do

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

2013, was before Mr. Snowden had --

THE COURT: We think this is a typo?

MR. BRESSLER: Yes.

THE COURT: Sorry.

MR. BRESSLER: What he asked was about this

report in Vanity Fair Edward Snowden stated that he

"raised complaints" to NSA. So those are Plaintiff's

words quoting Mr. Snowden apparently in the Vanity Fair

article, talking about complaints. And then he goes on to

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

21

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

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.

If we read "concerns" that he raised any matter

of interest about NSA programs, as Your Honor implied in

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

very broad. I would suggest that it would be so broad

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

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

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

surplusage, which as this Court pointed out in their

Conservation Forest v. Ash, rendering those words mere

surplusages a result that is an anathema to established

principles of reasoned interpretation.

So I think the NSA's interpretation of the

request is really the only plausible interpretation. It's

not ambiguous; "raised concerns" means complaints,

worries, concerns that something is illegal or immoral or

wrong in emails to NSA officials. That is what the agency

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

22

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

programs. I mean, maybe somehow reading between the lines

outside the four corners of the document or the request

Plaintiff's counsel or his client thinks that that evinces

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

about executive orders versus statutes versus regulations,

referring to some sort of PowerPoint or something that he

had seen. And the response was executive orders can have

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

statute. There's nothing in there about NSA programs.

However, in I think an abundance of caution the

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

the closest thing it found to being anything responsive to

what Mr. Snowden himself described in an NBC interview,

which is the first time that the agency publicly released

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

request.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

23

I would also note on that point for Your Honor

that it is undisputed that that email does not raise

concerns about NSA programs. The reason it's undisputed

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. So undisputed.

I would also note that in his own statement of

material facts not in dispute Plaintiff stated that as of

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

no responsive records had been produced to plaintiff. So

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

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

waived any argument under the local rules of this Court

that that email raised concerns about NSA programs as

specified in the request.

THE COURT: Although that might be so, I guess

I'm just trying to understand the implications for what

the NSA considered to be fitting within its definition and

what it didn't. So notwithstanding the fact that

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

here today that Plaintiff suggested that under your

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

the definition that Plaintiff is positing, I'm still

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

24

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

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

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

have something to do with an NSA program?

MR. BRESSLER: 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. I think Plaintiff has stated in his papers that

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

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

certain NSA activities. That's not within that email.

What the email said is I saw the training, it

talked about this point of law. Is that correct, can an

executive order trump a statute? And the response was no.

I think the agency did not see there a concern being

raised about NSA programs.

THE COURT: All right.

MR. BRESSLER: I can also -- well, I'm sorry.

THE COURT: No, please continue.

MR. BRESSLER: Well, turning to another point on

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

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

cases where perhaps he should have used the word

"collection."

To provide some context here, I think the

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

25

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. But because Plaintiff threw a bunch of argument

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

necessary here.

THE COURT: So there are three Sherman

declarations, and the second one is in connection with the

other motion?

MR. BRESSLER: That is correct. What we did,

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

cross-opposition that we were incorporating that

declaration and that filing by reference because there was

some kind of crossover between them.

THE COURT: All right.

MR. BRESSLER: So referring I think to the

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

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

Paragraph 5 -- take a step back.

The NSA as part of the investigatory collection

conducted by the Associate Director of Security and

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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: Yes.

THE COURT: Back in 2013.

MR. BRESSLER: All of his emails, which would

include any emails he sent that could be responsive to

this request, among other things. Paragraph 5 of that

January 2015 declaration, Dr. Sherman attests that in

reviewing the results of the agency searches, which means

that collection, the FOIA personnel, personnel in the

associate directorate for policy and records reviewed

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

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

to which an email raising concerns about NSA programs

reasonably could be expected to have been sent.

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

request, following this request, searched through the

entire pot, the entire universe of anything that could be

responsive looking for anything that is responsive.

THE COURT: So there was a second search

conducted?

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

27

MR. BRESSLER: Yes. I believe there were many

searches very carefully conducted by human beings. It's

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

every email" searches conducted by people.

THE COURT: Why is it not in the declaration?

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

how the searches were done?

MR. BRESSLER: Again, Your Honor, I think we

felt that it was in the declaration by making it clear

that the FOIA staff reviewed all of those emails, reviewed

the results of those searches. It was also in the most

recent -- I'm sorry.

In the first declaration, which was the

September 12, 2014 declaration, Paragraph 17, "After

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

reviewed the aforementioned searches conducted and the

results of these searches."

So the FOIA office looked at everything that was

found in response to the law enforcement search or

collection and determined there is nothing responsive. So

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

here today? Yes. But I think what was in the

declarations I would submit should be adequate to make it

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

Plaintiff's FOIA request.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

28

THE COURT: 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: So they reviewed the searches

conducted and the results of those searches.

MR. BRESSLER: Right.

THE COURT: So you agree with Mr. Light's

interpretation in the sense that in 2013 the universe was

compiled.

MR. BRESSLER: Yes.

THE COURT: But you're saying in response to the

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

and looked for the "raising concerns" email.

MR. BRESSLER: Yes.

THE COURT: All right.

MR. BRESSLER: And to be clear, if I can parse

that sentence, they reviewed the aforementioned searches

conducted. So in other words, they looked back at the law

enforcement collection of information and said is this

sufficient for purposes of responding to this FOIA

request. They determined yes, it is, because as Plaintiff

agrees, they had collected the entire universe of

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

29

anywhere, it's going to be in there. And the results of

those searches refers to actually going back and looking

at every email.

THE COURT: Right. 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

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

saying they did actually made the determination of what

counted as raising concerns within the universe of

documents that they were perusing.

MR. BRESSLER: Well, Your Honor, I would -- you

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

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

mean, there's no discussion of keywords. The agency isn't

required to use keywords and therefore isn't required to

describe keywords because people on the FOIA staff

reviewed individually every email, every word of every

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

was filed with the government's cross-opposition and

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

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

the context of the additional descriptive information

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

30

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

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. And

that to be clear they were quoting the alternate

definitions that Plaintiff himself brought up I think in

the government's cross-opposition brief.

We cited to some other dictionaries that, you

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

things. Concern can mean a kind of business, right.

Pepco is a public utility concern. That's obviously not

what he meant here.

THE COURT: The only problem with this, I do

understand your point, but obviously this statement in

Paragraph 4 related to the agency's interpretation as a

post hoc discussion because the notion of the debate

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

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

agency was conducting this particular review.

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

result of the declaration is exactly what the agency

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

31

officers who were doing the search were told

contemporaneously to look for. I mean, I guess I

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. Is that what you're saying

happened?

MR. BRESSLER: I think that is essentially

correct, Your Honor. And I would point out, you are

correct this declaration is from this May, not from the

date in which the search was conducted. It wasn't a

declaration prepared ahead of time, but it is still based

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

appropriate deference under established FOIA case law.

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

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

good faith.

THE COURT: All right. But what's not in here

is something interesting, which is the, what does this

universe of documents look like. And to what extent

should the Court just say since we have this dispute over

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

in, NSA. Are we talking about thousands of documents here

or what?

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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. The D.C. Circuit

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

suspect a problem, which there is no reason here.

And, of course, Plaintiff has no right to

anything about nonresponsive documents or information

about nonresponsive documents. If, as Your Honor

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

request for every email that Plaintiff said he sent, he

can do that. In fact, Plaintiff may already be aware,

Your Honor is aware that this case now also includes,

because the Court permitted Plaintiff to supplement his

complaint, a separate subsequent FOIA request that was

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

for 18 categories of various documents related to -- still

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

for documents responding to the press, searches that were

done. The agency is in the process of processing that

request under a schedule agreed to by the parties and

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

33

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.

THE COURT: Denied by the agency, not in

litigation?

MR. BRESSLER: Yes, not I believe in litigation,

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

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

enough going on already. And maybe the agency would

satisfy him, although Mr. Light seems skeptical.

Here the emails from Mr. Snowden, total emails,

not emails raising concerns about NSA programs but the

total emails available when the search was conducted back

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

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

can only talk about those that were available to the

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

FOIA request, which included all of those that were

available back in 2013 which they were collected.

Mr. Snowden sent zero emails to the Office of

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

34

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

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

nothing. There's a separate Office of Compliance within

the Signals Intelligence Directorate. Mr. Snowden did

have a handful of emails to them. They concerned him

doing his job of providing tech support to them, not

raising concerns about NSA programs. And that was some

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

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

Mr. Snowden sent emails.

So if you expand this to talk about any emails

sent to the threat operations center where he was working

in Hawaii, then the number of total emails increases to

the hundreds or thousands of emails because they are the

sorts of emails that one would expect being sent about

work and nonwork subjects to colleagues. None of them

raised concerns. None of them were even officials raising

concerns about NSA programs.

We know what "raised concerns" means to the

agency. It means I think the only plausible reading of

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

35

the FOIA request. And we know in sworn testimony of a

senior government official, which we have no reason

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

any. There aren't any. There is no reason for the Court

to waste its time repeating the task of trolling through

those emails.

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

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

quoted in the Washington Post saying that he had

communicated to people about a supposed code word

Boundless Informant program where he said what do you

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

on the front page?

Not sure that would be, you know, necessarily

responsive, but the agency wouldn't consider that

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

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

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

have feelings about this when it becomes known. If they

had located such an email, that would have been considered

responsive. That would have been considered raising

concerns to suggest there would be a negative reaction if

something, you know, became public. They didn't find any

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

36

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.

MR. BRESSLER: Yes. That would have been --

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

about what they are doing. I mean, speaking of

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

believe this, how do you think the public would react

tomorrow if this was on the front page of the Washington

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

been understood to express concern within the four corners

of the email, and it did not exist.

At a minimum the agency responded here in an

abundance of caution. That's why it produced the other

email, the already publicly available email to Plaintiff

about the relative hierarchies of legal authority. So at

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

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

of unresponsive material, but there was nothing like that.

THE COURT: All right. Thank you, Mr. Bressler.

MR. BRESSLER: Thank you.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

37

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

relying on argument of counsel, those should be and can

probably very simply be presented in a declaration.

I'm also skeptical about the claim that there

was a second search which involved looking at the entire

universe of documents, because the way that Dr. Sherman

described it as looking at the search and the results,

which would suggest that there was perhaps a document

stating what the results were that were looked at.

And if you look at the timeline of this,

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

on April 9. And NSA had its final response on June 23.

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

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

believe that the agency's staff looked at every single

Snowden email during that two and a half months.

THE COURT: Of course, that's what the law

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

38

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

previous results rather than looking at everything.

But this point could be very simply cleared up

by statement from Dr. Sherman saying specifically what it

is that happened rather than us sort of speculating on the

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

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

So I think that some additional declarations from the

defendants would go a long way in clarifying some of the

factual issues and not require the Court to speculate on

what was actually said.

Those are the only additional points I have to

raise.

THE COURT: Well, I mean I'm just following up

on that point. Isn't your argument just that without that

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

you saying that I should order them to produce such a

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

39

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

description as opposed to the failure to actually conduct

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

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

finds that the search was inadequate, then it would be

remanded. If the issue is that the declarations are not

clear as to what happened, then typically what would

happen is the Court would need to deny it without

prejudice and permit the government to refile.

But just in the interest of judicial economy, it

may perhaps be useful rather than the Court writing a

decision saying that perhaps the NSA is willing to

voluntarily provide additional declarations to supplement

the record. Certainly it might facilitate this Court's

job.

THE COURT: Thank you, Mr. Light.

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

40

interested in the opportunity to provide additional

declarations? I understand your baseline point being that

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

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. Obviously it's up to Your

Honor what's appropriate. But I do not think the Court

should order us to do that. I think if Your Honor gives

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

shortly, which was raised in the papers rescheduling this

hearing to accommodate both counsel, but some period of

time in which to supplement the record would be fine. I

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

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

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

Appeals and this Court, especially the Court of Appeals

not infrequently rely on representations of counsel and

especially government counsel, so I don't think there

would be a problem in relying on averments at oral

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

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

Director of Compliance, just the one to the Office of

General Counsel.

As far as the suggestion that it's hard to

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

41

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. But I want to be clear,

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

the story of Mr. Light perhaps skillfully throwing lots of

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

them stick, and he has concluded that entering into this

hearing there were two of them left. Each of the

declarations sought to respond to each of them. We

haven't filed any declarations since the newest brief or

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

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

at the emails to make sure that everything has been done

properly.

What Dr. Sherman attested to in May was that as

of the time of that declaration we looked at every single

email and determined that there's nothing there that is

conceivably responsive.

THE COURT: Under your definition.

MR. BRESSLER: Yes.

THE COURT: So really from a government's

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

42

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. This is not a case where he said, as Your

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

emails. I'm especially interested in ones in which he

raised concerns. He said, And therefore we might be held

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

providing all of the emails.

What he asked for was all emails in which he

raised concerns about NSA programs to agency officials.

And then in the next line of the FOIA request described

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

about complaints. So I don't see Plaintiff's reading as

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

know how the agency would apply that. How do they know,

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

importance to Mr. Snowden?

Your Honor suggested in the Court's questions to

Plaintiff's counsel that would be anything he wrote about

in an email; right? I think that's correct. And

therefore it would be all of his emails about anything to

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

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

43

is what Mr. Leopold --

THE COURT: Right. Which is your argument with

respect to the interpretation. I'm just getting to the

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

concerns emails.

MR. BRESSLER: Yes. They relied on the

extensive 2013 collection for the stack of emails to

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

than emails. But they relied on that stack of emails.

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

was anything raising concerns --

THE COURT: Right. And so the second issue from

your perspective is there is not a dispute over whether or

not the government can rely on a previous 201 search,

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

separate search.

MR. BRESSLER: Yes.

THE COURT: All right. Okay. Thank you.

MR. BRESSLER: Thank you, Your Honor.

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

44

anything more.

MR. LIGHT: Nothing further, Your Honor.

THE COURT: All right. Well, I will think about

this. I will look through these things, take the argument

here today and on the papers under advisement and will

issue a written order. Thank you.

(Proceedings adjourned at 4:11 PM)

*************************

CERTIFICATE OF OFFICIAL COURT REPORTER

I, Barbara DeVico, certify that the foregoing is

a correct transcript from the record of proceedings in the

above-entitled matter.

______________________________ 8-14-15

SIGNATURE OF COURT REPORTER DATE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25