Despite most of us assuming that the court would simply defer to the government, the magistrate has ordered the government to recommend redactions to allow a partial release...
...The question now is whether the court will push back on what is likely to be over broad proposed redactions. As I previously stated, I have little doubt that portions of the affidavit could be released without having a serious impact on the investigation...
...These affidavits commonly have descriptive portions of past communications with the target. Those communications are already known to the other side and should be capable of at least partial release...
...We are more interested in how the information was presented to see if there was a faithful recounting of the facts in the case...
...My concern is that there is likely not to be adversarial counsel involved. In my national security cases, I am the cleared counsel allowed to see the classified material. I can then argue for disclosure in sealed filings reviewed in a SCIF...
...In this case, the magistrate will have to make those judgments without such adversarial input. Yet, he can do on the face of this affidavit...
...One concern that I raised with the account of the media counsel is that she suggested that, if there is a disagreement with the government, the court would allow the matter to be taken up on appeal...
...Hopefully, the court will allow areas of agreement to be released while allowing an appeal on contested sections. Otherwise, a disagreement over a minority of material could hold up the release of the rest of the material.
...I was also struck that the media counsel referred to confidential informants in the plural. That is also something to watch as we go forward.
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