The Supreme Court’s inability to find the whistleblower adds to its credibility problems

The Supreme Court’s inability to find the whistleblower adds to its credibility problems


The Supreme Court’s stunning report Thursday on its failure to find out who released a draft decision reversing abortion rights last year laid out glaring deficiencies at the country’s highest court, in its technology, its protocols for confidentiality and overall institutional safeguards.

Additionally, the lack of success in determining who was responsible raises the possibility of a future security breach. It already seems likely that it will increase public confidence in the judiciary and intensify the partisan rancor surrounding the court.

The judges’ two-page statement and the 20-page report by Supreme Court Marshal Gail Curley appear to be intended to demonstrate the thoroughness of the investigation, with the number of people interviewed (126 formal interviews with 97 employees) and various forensic measures taken.

But every page rings with borders and dead ends. It also suggests certain limits on who is investigated, only referring to employee scrutiny. No mention was made of possible interviews with the nine individual judges or their spouses.

Furthermore, it is paradoxical that an institution that shrouds itself in secrecy and casts itself above other institutions in Washington would be exposed as such a sieve.

The report makes clear how easily confidential information could be slipped out, whether on purpose or by accident. About 100 people had access to the draft at the start, according to the report’s details. Many employees, the report said, “had more than one copy.”

In an important case with half a century of precedent protecting women’s privacy rights, normal office precautions were not there. And when the breach was discovered – a breach which the court itself considered a “serious attack” – it was impossible to seek internal operations again.

Although the report effectively clarifies the law clerks who serve the judiciary for a one-year term, it noted that some of them admitted to telling their spouses about the opinion and the counting of votes, in violation of the clerks’ code of conduct.

In the days immediately after Politico published the draft, some conservative activists accused liberal clerics of the leak. Meanwhile, liberal advocates have targeted the court’s conservatives who may want to cement the 5-4 split to overturn Roe v. Wade to cancel. The partisan fight did not escalate until the reproductive rights decision was issued nationwide.

Thursday’s inconclusive report did little to ease such tensions and instead prompted questions about how seriously the court sought those responsible for the leak.

Outside critics predicted it would be difficult to determine who leaked the draft to Politico, which published the document on May 2, believing that whoever was responsible would have left no trace.

But now that her operations have been laid out by the court, it seems that avoiding detection could be quite simple.

Computer and printing technology was not secure. Officials could not determine definitively whether copies of the draft decision in Dobbs v. Jackson Women’s Health Organization patiently copy or email to unauthorized devices.

“(F)or some networked printers had little logging capability at the time, so many print jobs likely weren’t captured,” the report said. Investigators also determined that the printers used by the judicial staff were only locally connected, rather than connected to a larger network that could track printing activity.

The report acknowledged that there was no written policy on how to protect or dispose of draft opinions and other sensitive documents.

“The pandemic and the expansion of the ability to work from home, as well as the gaps in the Court’s security policies,” Curley wrote, “created an environment where it was all too easy to remove sensitive information from the building and the Court’s IT networks , increasing the risk of deliberate and accidental disclosure of information sensitive to the Court.”

The report, which was nearly nine months in the making, belied the suspension created by Chief Justice John Roberts on the investigation. In his statement on May 3, he referred to “a reliance on the confidence of the Court … intended to undermine the integrity of our operations.”

The report came with a seal of approval from an outside firm, the Chertoff Group, hired to review Curley’s investigation. Michael Chertoff, a former judge and Homeland Security secretary who now runs a private firm, wrote that Curley and his investigators “conducted a thorough investigation within their legal authorities.”

In his one-page statement accompanying the judges’ materials for public distribution, Chertoff made specific recommendations, all of which seemed pretty basic to any operation that handles legal documents, if not the country’s chief judicial officers: curb distribution of paper copies of sensitive. documents; restrict email distribution of such documents; adopt tools to better control how such documents are edited and shared; and limit access to sensitive information on mobile devices outside.

Curley noted that no evidence has come to light that anyone sent the draft opinion outside via email, “although technical limitations of the Court’s record keeping made it impossible to completely rule out this possibility at the time.” She added that she could not rule out the possibility that someone had downloaded the comment to a removable device.

CNN reported last summer that Curley was collecting cell phones and other devices from clerks and permanent employees. “To date,” she wrote in the report, “investigators have not obtained any relevant information from these devices.” Interviews and signed affidavits also went unanswered.

Curley, who said new security measures were being put in place, was candid about how few conclusions her team could reach, adding that the draft opinion could inadvertently be left in a public place. However, she said, in relation to any employee who acted deliberately, “that person was able to act with impunity due to inadequate security in transferring hard copy documents from the Court to the home, without mechanisms to track printed jobs on the Court. printers and copiers, and other gaps in securities or policies.”

That reality puts a bureaucratic stamp on the violation that was considered the most serious violation ever in the court.

Roberts promised back in May that the revelation would not interfere with the judges’ work. He then declared that “the draft does not represent the decision of the Court or the final position of any member on the issues in the case.”

But it did – despite Roberts’ own efforts to try to change the outcome.

The final opinion, issued on June 24, differed little from the draft opinion reversing Roe v. Wade, a 1973 decision that first gave a woman a constitutional right to terminate a pregnancy. Justice Samuel Alito, who wrote the new opinion, was joined by four conservatives.

Even after the leak that was learned by CNN, Roberts tried to convince one of the five judges in the majority to break out and prevent the reversal of almost half a century of abortion rights. The chief Justice voted to uphold a controversial Mississippi law that prohibited abortion at 15 weeks of pregnancy, but he did not want to use the case to destroy abortion rights at earlier stages of pregnancy.

None of the five on the right may have had a vote, but CNN learned through sources at the time that the decision to let go made Roberts’ negotiating efforts even more difficult.

It may be impossible to determine how the leak changed the course of history. But Thursday’s report, which revealed the loose handling of classified documents, suggests that the leak itself was not necessarily inevitable.

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