DOJ Apologizes For Misleading FISC Concerning Evidence; Hints Strongly That It Used Opportunity To Destroy Evidence

from the evidence,-who-needs-it? dept

A few weeks ago, we noted that FISC Judge Reggie Walton was quite reasonably pissed off at the DOJ for directly withholding key information about evidence in a series of lawsuits concerning NSA surveillance programs. The full details are a bit down in the weeds, but the short summary is that there's been some debate over whether or not the government needs to retain surveillance data because it's evidence in these cases, or if it needs to destroy the surveillance data, as required by the rules over its holding of the data. There's been a bit of back and forth over all of this, but the DOJ apparently directly withheld from the FISC a request by EFF lawyers to inform the court that a data preservation order should cover two of the key NSA surveillance cases that it has been involved in for years (since well before the Snowden disclosures). The DOJ not only did not inform the court, but it also appears to have tried to dissuade the lawyers from raising the issue. Judge Walton ordered the DOJ to explain itself, and it gives a long apology, repeatedly insisting that it didn't believe those cases were related, since they were focused on surveillance data ordered by the President, rather than the FISA Court -- a weak excuse at best:
Based upon the nature of the claims made in Jewel and Shubert, which the Government has always understood to be limited to certain presidentially authorized intelligence collection activities outside FISA, the Government did not identify those lawsuits, nor the preservation orders issued therein, in its Motion for Second Amendment to Primary Order filed in the above- captioned Docket number on February 25, 2014. For the same reasons, the Government did not notify this Court of its receipt of plaintiffs' counsel's February 26, 2014, e-mail. With the benefit of hindsight, the Government recognizes that upon receipt of plaintiffs' counsel's e-mail, it should have made this Court aware of those preservation orders and of the plaintiffs' disagreement as to their scope as relevant to the Court's consideration of the Government's motion and regrets its omission. The Government respectfully submits that in light of this submission, and this Court's Opinion and Order dated March 12, 2014, granting the Government's motion for temporary relief from the destruction requirement in subsection of the Court's Primary Order, no additional corrective action on the part of the Government or this Court is necessary.
It goes on for much longer trying to suggest that this was all just an honest mistake, and how could it have possibly realized that the lawyers for the plaintiffs in those cases might think the issue of preserving their evidence was related to similar questions over preserving evidence of other NSA cases. It insists that it really was just focused on the more recent cases that were filed post-Snowden ("filed after last year's unauthorized public disclosure concerning the collection of telephony metadata pursuant to FISA authority") and hadn't even considered how it related to older cases concerning NSA surveillance.
The Government did not notify the Court of Jewel and Shubert in the Motion because the Government has always understood those matters to challenge certain presidentially authorized intelligence collection activities and not metadata subsequently obtained pursuant to orders issued by this Court under FISA, and because the preservation issues in those cases had been previously addressed before the district court in which those matters are pending. Jewel and Shubert, filed in 2008 and 2007, respectively, challenge particular NSA intelligence activities authorized by President Bush after the September 11, 2001 terrorist attacks without statutory or judicial authorization.
As the DOJ goes on to explain, it assumed the preservation issues in the Jewel and Shubert cases were settled, and therefore irrelevant to the FISA issue (especially since, in its mind, the two sets of cases covered different programs). Thus, the DOJ claims, its emails dissuading the lawyers from raising the issue weren't so much about silencing those lawyers and hiding information from FISC, but were a true misunderstanding, in that it was just letting those lawyers know the issues were unrelated, as well as a desire (no joke) to not bother the FISC with unnecessary distractions.
In particular, the request in its February 28 email that counsel for the Jewel plaintiffs "forebear from filing anything with the FISC, or [the district court], until we have further opportunity to confer" was a good faith attempt to avoid unnecessary motions practice in the event that the issue could be worked out among the parties through the Government's provision of an unclassified explanation concerning its preservation in Jewel and Shubert. Accordingly, the Government did not bring the Jewel plaintiffs' February 25 email to this Court's attention.
Of course, there's still the big question of, between the two FISA court orders, whether or not the DOJ did, in fact, destroy some of the evidence. And, a follow-up correction from the government very strongly suggests that it absolutely did use the opportunity to destroy evidence. The follow-up is a correction to a footnote, in which the DOJ makes it clear that "consistent with the Government's understanding" (which appears to be mistaken) and "prior to" the more recent filing, "the Government complied with this Court's requirements that metadata obtained by the NSA under Section 215 authority be destroyed no later than five years after their collection."

What that almost certainly means is that the NSA destroyed the metadata collected up until 2009, which likely is relevant to the Jewel and Schubert cases, even though the lawyers in those cases had alerted the DOJ of these concerns. For all of the DOJ's "apologies" in the first document, this certainly seems very convenient for the US government. And, as Marcy Wheeler notes, the destroyed evidence may have included "cover almost all of the phone dragnet violations discovered over the course of 2009." Convenient. But the DOJ is really, really sorry about it. Really.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Loki, Apr 4th, 2014 @ 1:49pm

    I don't believe for a second that this information is gone. Oh, sure maybe their copy, but I'm a 100% positive some organization or collection of organizations (NSA, FBI, CIA, ICE, TSA) has every piece of data the DOJ claims it's gotten rid of tucked away in one database or another.

    reply to this | link to this | view in thread ]

  2. identicon
    David, Apr 4th, 2014 @ 1:50pm

    No lack of oversight

    There is an oversight whenever it is needed...

    reply to this | link to this | view in thread ]

  3. icon
    JoeCool (profile), Apr 4th, 2014 @ 2:03pm

    Question of law

    When one party destroys evidence in a lawsuit, isn't the judge REQUIRED to assume the evidence was as damning as possible? I've read that in a number of spoliation cases over the last few years.

    reply to this | link to this | view in thread ]

  4. icon
    Designerfx (profile), Apr 4th, 2014 @ 2:10pm

    Re: Question of law

    It gets slightly better. This is probably the worst possible time to have done exactly that - being caught red handed right as the judge is wising up to the BS that they've been pulling. While FISC may be a rubber stamp in general, I have a feeling they are not toothless.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Apr 4th, 2014 @ 2:24pm


    Even if none of them have it, there are still countless of private contractors who might have it. Hasn't it been a long standing tradition to hide various black projects nobody should know about within private contractors?

    I think it is time to look there more closely as well.

    reply to this | link to this | view in thread ]

  6. icon
    Anon E. Mous (profile), Apr 4th, 2014 @ 2:30pm

    he fact that the DOJ knew full well of the fact that the EFF was going to file a request to preserve the evidence, and the DOJ went out of it's way to convince or suggest that the request to preserve didn't need to be made by the EFF ought to signal to the court that there was evidence vital to the EFF's case.

    The DOJ knowing full well that they destroyed the data that the EFF got an order to preserve, is a crime in itself. The DOJ will know pull a Team Prenda and tell the court they were confused or couldn't interpret the court's order and they are sorry.

    It is amazing how much the Government will break their own laws and the DOJ and it's lawyers will lie at will to cover their Government and the DOJ's abuse of the power in regards to their own citizens.

    It is no wonder that the American people have no faith in their government and their Justice system when they are brought before them as the government seems to stack the deck in their favor at all times.

    When questions are raised by those where the government has committed mis-deeds and they know they are in trouble they just destroy the evidence in question and give the defense counsel and the court the "aw shucks, we're sorry" routine.

    It is amazing how far the government will go to manufacture evidence to serve their own interests in crimes against their own citizens.

    I would hope this Judge would demand that these lawyers for the DOJ be charged with contempt and a criminal prosecution, but we all know they will get the Prenda Treatment and the Judge will give their illegal actions a finger wagging and they will be sent on their way to sin no more.

    It is now wonder that everyday more and more people see how out of control the government is and why their faith in equal justice is no longer their and mis-trust of the government is on the rise

    reply to this | link to this | view in thread ]

  7. icon
    Anon E. Mous (profile), Apr 4th, 2014 @ 2:32pm

    Re: Re:

    While I would hope your right and this is stashed somewhere, I doubt it ever will be officially found by the Government. It would take a whistle blower to bring it forward IMHO

    reply to this | link to this | view in thread ]

  8. icon
    Jay (profile), Apr 4th, 2014 @ 2:59pm

    Who's got the copies?

    This all sounds so familiar...

    I wonder what is going to happen with all of these shenanigans...

    reply to this | link to this | view in thread ]

  9. icon
    Coyne Tibbets (profile), Apr 4th, 2014 @ 3:17pm

    No worries, mate.

    Just demand the backups. I'm sure they kept some. After all, FISC said, "data," and I'm sure NSA thought that didn't include backups, right?

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Apr 4th, 2014 @ 3:31pm

    Re: Re: Re:

    of course not. plausible deniability.

    however, in reality they will never let go of information once acquired. While they really might not have it themselves, I bet they know exactly where it is.

    reply to this | link to this | view in thread ]

  11. identicon
    CommonTater, Apr 4th, 2014 @ 3:47pm

    Re: Re: Question of law

    I think you're right... because of the actions of everyone else, FISC has got a bad name over the past year. Considering they ARE some of the most experienced judges in the US sitting on FISC, I bet they're pretty pissed off at having their names dragged through the mud and being made fools of. You can rest assured that they'll use the law to their advantage when they feel it is warranted.

    reply to this | link to this | view in thread ]

  12. identicon
    kitsune361, Apr 4th, 2014 @ 3:48pm


    The DOJ knowing full well that they destroyed the data that the EFF got an order to preserve, is a crime in itself.

    Except who do you get to prosecute the DoJ? This is why nothing will change: there is rampant lawlessness and no one with the power to stop it gives a crap. If this doesn't fit the definition of "high crimes and misdemeanors" I don't know what does.

    reply to this | link to this | view in thread ]

  13. identicon
    zip, Apr 4th, 2014 @ 6:56pm

    Re: Re:

    The way it ALWAYS works in the government, in the military, in virtually every large organization, is that any blame will always get dumped on a low-level employee (who somehow "misinterpreted" his instructions from superiors).

    Blame never sticks to the guy at the top who might have given the order (but will of course deny it) but will hit the guy on the very bottom of the food chain who carried it out and therefore can't deny it.

    reply to this | link to this | view in thread ]

  14. identicon
    Hanging Judge, Apr 4th, 2014 @ 7:43pm

    Can we start some disbarment proceedings please?

    reply to this | link to this | view in thread ]

  15. identicon
    bobby b, Apr 4th, 2014 @ 7:46pm

    From long, long experience - pre-Obama experience - I can say to you, "welcome to the Chicago way."

    The Chicago way is is a sort of brazen, testosterone-driven way of looking you right in the eye, telling you a baldfaced lie even while knowing that you already know that it's a lie, and then aggressively communicating that they know that you know that they know, that they don't give a ____, and daring you to do something about it.

    Remember back when O first started? When people were getting photos of him sort of surreptitiously giving the finger to someone in his audience? His handlers got him to stop doing this, but it was a pure Chicago thing - you screw someone over, and then you give them that half-hidden finger in public to show them that you meant it, and that you're the boss.

    So now BO has given that finger to the judge, and to all of the various plaintiffs. They all now know for sure that the DOJ knew exactly what it was doing when it "got confused."

    And the final message from this fingering is, simply, "so, what are you gonna do about it?"

    Y'all elected yourself a lying thug straight out of the Daley machine. Don't be surprised when he treats you like a mark.

    reply to this | link to this | view in thread ]

  16. icon
    M. Alan Thomas II (profile), Apr 5th, 2014 @ 8:27pm

    So . . . their excuse about not mentioning the prior cases earlier is that this order didn't cover them and/or they were the subject of ongoing preservation orders that wouldn't be affected by this order, but their reasoning for destroying the metadata is that this order did cover those prior cases and/or overrode prior orders? They can't have it both ways, if they did indeed destroy the evidence relating to the prior cases.

    reply to this | link to this | view in thread ]

  17. icon
    That One Guy (profile), Apr 6th, 2014 @ 10:55pm


    They can as long as the judge(s) involved lets them get away with it, so hopefully the judge treats all destroyed evidence as though it painted the DoJ in the absolute worst light, and rules against them accordingly.

    reply to this | link to this | view in thread ]

  18. identicon
    Pragmatic, Apr 10th, 2014 @ 5:14am


    Yeah... except that they all do it. This is not an Obama-only thing, as some of you are trying to paint it.

    reply to this | link to this | view in thread ]

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