from the I-may-actually-miss-this-guy-once-he's-gone dept
Another FISC opinion and order has just been released dealing with the NSA's retention of metadata that may be used as evidence in some ongoing lawsuits against the government. The DOJ had originally asked to hold onto the pertinent data past the five-year expiration date because of these pending lawsuits. This request was shot down by FISC judge Reggie Walton, who stated that holding Americans' data past the disposal date put the surveillance programs on shaky Constitutional grounds, while also pointing out that the government's arguments relied on caselaw dealing with the retention of corporate documents, something which clearly wasn't in the same league as data collected on Americans.
Shortly thereafter, a federal court handling two lawsuits (Jewel v. NSA [this is an EFF lawsuit originally filed in 2008], First Unitarian Church v. NSA) centered on NSA domestic surveillance issued a temporary restraining order on the destruction of relevant metadata. This was brought about by the DOJ's announcement that it would begin destroying the relevant data for these two cases based on Walton's February order.
This is where the DOJ starts looking very shady, according to Judge Walton's recounting of the events.
The March 10 Motion further indicated that one of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv-0603 (N .D. Cal.) remains in litigation, and the MDL preservation order remains in effect for that case. Additionally, the March 10 Motion stated that the Jewel case, which was filed in 2008, was designated by the District Court as a related action to the Hepting matter, and that Court entered an evidence preservation order in Jewel, based on the MDL evidence preservation order, which remains in effect. LCL The March 10 Motion noted that the plaintiffs in Jewel and First Unitarian contacted the government on February 26, 2014, regarding the relevance of these preservation orders to the February 25 Motion, and made a "specific request" that the government inform the FISC of their existence.The plaintiffs asked the government to inform the FISC about their existence so that their data could be retained as well. That never happened. Instead, they were forced to file a Temporary Restraining Order in order to prevent this data destruction. This was granted by the circuit court judge and brought to the FISA Court, where Judge Walton ordered the extended retention of data specifically related to these cases. In its response filing, the DOJ had this to say about the plaintiffs who asked them to speak to the FISA court.
A footnote in the March 13 Response indicated that, "[c]ontrary to their representation . . . [the m]ovants did not make a 'specific request' that the government inform this Court about the preservation orders in Jewel and Shubert."The DOJ included (as an exhibit) email correspondence between it and the plaintiffs of the lawsuit as support for its claim that no request was made. Upon review by Judge Walton, that assertion was false. Walton gives the government an out by claiming it may have just misperceived which surveillance program was being discussed (Section 215 vs. an "executive authority" program -- Section 501), but even then, he points out that the plaintiffs disagreed with the DOJ's reading of the situation.
From this point on, Walton takes the DOJ to task for deceiving the court (whether deliberately or otherwise).
As the govemment is well aware, it has a heightened duty of candor to the Court in ex parte proceedings. Regardless of the government's perception of the materiality of the preservation orders in Jewel and Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northem District of California required the preservation of the FISA telephony metadata at issue in the government's February 25 Motion. [E-mail Correspondence at 6-7.] The fact that the plaintiffs had this understanding of those preservation orders -- even if the government had a contrary understanding - was material to the FISC's consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court's statement, based on the information provided by the government in the February 25 Motion, that "there is no indication that any of the plaintiffs have sought discovery of this information or made any effort to have it preserved.The above might be written off as a failure to communicate, but Walton's next paragraph details even more DOJ malfeasance.
The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs' understanding of their scope, regardless of whether the plaintiffs had made a "specific request" that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of Califomia.The next filing entered should be rather informative, based on Walton's demands.
It is FURTHER ORDERED that the government shall make a filing with this Court pursuant to Rule 13(a) of the United States Foreign Intelligence Surveillance Court Rules of Procedure Rules of Procedure") no later than April 2, 2014. As part of this filing, the government shall explain why it failed to notify this Court of the preservation orders in Jewel and Shubert and of the plaintiffs' understanding of the scope of those orders, upon learning that plaintiffs' counsel viewed those orders as applying to the Section 501 telephony metadata at issue in the February 25 Motion.This latest order from Judge Walton shows that the government wants to destroy data that might be used as evidence. There was some back-and-forth previous to this, but the DOJ probably had a good idea what Judge Walton would say back in February when it showed up to ask to hold on to domestic surveillance records indefinitely, deploying civil litigation guidelines and common law requirements as its only rhetorical weapons. Walton refused and the DOJ went happily off to tell plaintiffs that the FISA court had overridden their existing preservation orders. If the plaintiffs hadn't asked for a temporary restraining order, it might have gotten away with it.