From The Unsealed 'Jewel v. NSA' Transcript: The DOJ Has Nothing But Contempt For American Citizens

from the and-[local]-god-help-you-if-you're-a-foreign-citizen dept

With some of the proceedings unsealed in the EFF's long-running Jewel vs. NSA lawsuit, more details can finally be exposed. Not that what's already been exposed hasn't been damning enough. Over the past several months, the DOJ has run interference for the NSA, traveling from courtroom to courtroom, destroying and saving (or at least pretending to...) collected data amongst a flurry of contradictory orders.

Not that it ultimately mattered. The NSA just kept destroying relevant evidence, claiming the system was too complex to do anything with but allow to run its course. Evidence would be destroyed at the 5-year limit, no matter what preservation orders were issued. The NSA, of course, has a vested interest in destroying evidence that its 215 and 702 programs collect the data and communications of Americans. Thanks to Snowden's leaks, it can no longer pretend it doesn't. But despite this, the DOJ still claims Section 702 targets only foreigners and American suspects located outside of the US.

The mock concern about compliance with court orders was a hustle. The DOJ wants as much evidence that might be useful to plaintiffs gone as swiftly as possible. Thanks to the unsealing of Jewel court documents, the EFF can now relate that the DOJ's efforts went much further than simply letting aged-off collections expire. It also actively tried to change the historical record of the Jewel case, as Mike covered here recently.

Citing classification concerns, the DOJ sought to editorialize its statements to the court, removing them (not redacting them) from the public record… and it didn't want anyone to find out. Take a moment to soak in the audacity of this request, made by the US government in a federal court.

If the judge had sided with the DOJ, there's a good chance some of the transcript embedded below would have gone missing… forever. Even after the documents were eventually unsealed, whatever the government had managed to convince the court was "classified" would no longer exist -- despite the fact that one week earlier these statements were made in an open court room.

It's likely that the judge's decision to notify the plaintiffs changed the DOJ's mind about retconning its own statements. It's a good thing nothing's missing. What's in there is terrible. The DOJ basically mounts the argument that no plaintiff should ever have standing to challenge either the Section 215/501 or 702 programs, unless they are Verizon Business customers… and even then they should only be able to challenge the former. (Apologies for the all caps, but that's the way the court transcribed it.)
AND WE SET THIS FORTH, AGAIN, FOR THIS COURT IN OUR MOST RECENT FILING IN WHICH THE DNI ASSERTED THE STATES SECRET PRIVILEGE AND EXPLAINED TO THE COURT THAT NOTWITHSTANDING ALL THESE TERRIBLE DISCLOSURES THAT OCCURRED OVER THE PAST YEAR -- IN FACT, THIS IS THE ONE YEAR ANNIVERSARY -- DISCLOSURES THAT WE ARE CONVINCED THAT HAVE SERIOUSLY HARMED THE NATIONAL SECURITY OF THIS COMPANY, WE HAVE CONTINUED TO PROTECT THE IDENTITY OF PARTICULAR TELECOMMUNICATION CARRIERS THAT ARE ALLEGED TO HAVE ASSISTED THE NSA, NOT ONLY IN THE SECTION 215 PROGRAM, WHICH WAS AT ISSUE IN THE CASES YOU CITED, BUT ALSO IN THE PRESIDENT'S SURVEILLANCE PROGRAM, ACTIVITIES WHICH ARE AT ISSUE IN JEWEL AND SHUBERT, AS WELL.

SO WE HAVE NOT CONCEDED THAT STANDING COULD BE FOUND BASED ON THE MERE EXISTENCE OF THE BULK TELEPHONY META DATA PROGRAM, IF THAT IS YOUR QUESTION.
Got that, citizens? Because we have made the choice to protect telcos withhold information, you will only have standing to challenge these programs under very narrow circumstances. The government is looking out for the best interests of its partners in surveillance. The rights of citizens are much further down the list.

And while acknowledging that it has withheld info on the telephony metadata program, the DOJ's lawyers simultaneously claim the plaintiffs should have been prevented from amending their case to include the recent Section 702 revelations, because that program has supposedly been out in the open and fully transparent since 2008.
SO I HARDLY KNOW WHERE TO BEGIN. BUT I WILL START WITH THIS. FIRST OF ALL, THE CONTENTION THAT 702 DID NOT EXIST WHEN THE COMPLAINT WAS FILED IS A FALSEHOOD. 702 WAS ENACTED IN 2008, IN JULY OF 2008, AS PART OF THE FISA ACT AMENDMENTS OF 2008.

NOT ONLY DID IT EXIST BEFORE THIS COMPLAINT WAS FILED, THE JEWEL PLAINTIFFS KNEW ABOUT IT, BECAUSE IT'S PRECISELY WHY THEY FILED SUIT. THAT LEGISLATION CREATED IMMUNITY FOR THE TELECOMMUNICATION COMPANIES.

THE ACLU OVER IN NEW YORK, KNEW QUITE WELL IT EXISTED. THEY FILED A COMPLAINT, I THINK, THE DAY IT WAS ENACTED INTO LAW. AND THAT MADE A LOT OF HEADLINES, AND IT WAS LITIGATED. AND IT WAS ALL, ALL PUBLIC. NO SECRET PROGRAM. AND IT WAS OUT THERE. SO THAT STATEMENT IS JUST NOT TRUE.

THE SECOND THING THAT'S NOT TRUE IS HER PROGRAM DESCRIPTION. 702 IS A PUBLIC STATUTORY PROGRAM. IF YOU LOOK AT THE AMNESTY INTERNATIONAL DECISION, IT DETAILS HOW THAT PROGRAM OPERATES. AND SO THAT IS THE SOURCE OF WHAT SHOULD BE THE COURT'S UNDERSTANDING FOR THIS PROGRAM AND HOW IT OPERATES.
Completely disingenuous. The program was never "out in the open." It protected telcos and helped codify warrantless wiretapping, but there was never any indication given that it also allowed the NSA to tap into the internet backbone and siphon off communications of Americans. And it certainly wasn't presented as a tool to be used as an untargeted dragnet.

This is only a small part of a document the DOJ wanted to selectively edit and present later as an untouched factual record of a federal hearing. The government claims no one has standing because everything related to the NSA's programs is "rank speculation" -- basically pretending the "terrible disclosures" never happened. In the same breath, it claims the programs have always been transparent and completely above board, therefore no one should be able to amend their complaints when additional info is exposed by leakers.

The government not only wants it both ways, but it has the breathtaking gall to ask to touch up its talking points after delivering them. After a dozen attempts to wrap up this post with something that pithily highlights the anger the government's editing attempt (and the horrible arguments contained in the transcript) has generated in me, I'm left with little more than this: FUCK THE DOJ -- it and every agency it oversees.

It witholds information about the companies involved in its dragnet surveillance programs, covers up everything else and pretends unauthorized disclosures "don't count," at least not when it comes to citizens being granted standing. It could easily clear up this "rank speculation," but it would rather shelter telcos from irate customers and give itself an easy way to get lawsuits dismissed. Then it spins everything around and claims the plaintiffs are misrepresenting the programs to the court -- something the DOJ has actually done itself -- and should not be allowed to amend complaints to reflect additional evidence gleaned from leaked documents.

Hey, I'm sorry the leaks have made it harder for these agencies to do whatever the hell they want, but they are all part of a government that's supposed to be accountable to the citizens picking up the check. But when faced with unhappy citizens and their diminished rights, all the DOJ's lawyers can say is that the public doesn't know shit and has no right to question the government's activities.

The government has somehow managed to come to a conclusion others reached weeks ago -- there's more than one leaker out there. GOOD. Burn it down. In the DOJ's hands, the government isn't by or for the people. It's despite the people. The DOJ can't be trusted to protect the balance between privacy and security. As it sees it, what the public doesn't know will likely hurt it, and it's damned if it's going to allow citizens to seek redress for their grievances.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    That Anonymous Coward (profile), Aug 18th, 2014 @ 9:23am

    something something dystopian present.

     

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

  2.  
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    Hephaestus (profile), Aug 18th, 2014 @ 9:32am

    Double think time, Wouldn't this be a kick in the pants ...

    What if there is only one leaker and it isn't Snowden?

     

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

  3.  
    identicon
    Anonymous Coward, Aug 18th, 2014 @ 9:36am

    Name change for relevance

    DOIJ

    Department of InJustice!

    Problems like this help cause problems like those in St Louis county. People are very much beginning to understand why they should distrust this government. So events like these become flashpoints due to everyone already having lost all patience reading about or dealing with this type of shit from the DOJ here!

     

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

  4.  
    identicon
    Freud Was Right, Aug 18th, 2014 @ 9:47am

    A devastating Freudian slip has occurred

    No wonder they wanted this edited:

    AND WE SET THIS FORTH, AGAIN, FOR THIS COURT IN OUR MOST RECENT FILING IN WHICH THE DNI ASSERTED THE STATES SECRET PRIVILEGE AND EXPLAINED TO THE COURT THAT NOTWITHSTANDING ALL THESE TERRIBLE DISCLOSURES THAT OCCURRED OVER THE PAST YEAR -- IN FACT, THIS IS THE ONE YEAR ANNIVERSARY -- DISCLOSURES THAT WE ARE CONVINCED THAT HAVE SERIOUSLY HARMED THE NATIONAL SECURITY OF THIS COMPANY,


    Not the national security of this country, you'll note -- the national security of this company. That's it right there -- a frank admission that they've sold American governance to private, for-profit interests.

    Of course, now that they've admitted to turning it into a private company whose board overlaps strongly with the likes of Goldman Sachs and Boeing and Monsanto and all of them, it seems to me that said company has a geographic monopoly, and I seem to recall that that's just plain not allowed.

    Time to bring out the antitrust guns. DOJ, investigate thyself!

     

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

  5.  
    identicon
    Anonymous Coward, Aug 18th, 2014 @ 9:48am

    From the DOJ perspective, the citizen has no right to privacy, and his/her every action is accountable to the government. The government has an absolute right of privacy, and cannot be held accountable by the citizens.
    Isn't that the wrong way round???

     

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

  6.  
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    Tweak (profile), Aug 18th, 2014 @ 9:55am

    Yet again

    I'm sorry if it seems that I keep harping on this, but this is another story that brings me back to the Declaration:

    "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it..."

    It is up to us, with the ballot box or by other means.

    Reading this, one begins to wonder if in the past the DOJ (or another agency) has been successful in a similar attempt.

     

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

  7.  
    identicon
    tomczerniawski, Aug 18th, 2014 @ 10:16am

    The National Security Agency makes us less secure. The Department of Justice gives us injustice. The Central Intelligence Agency is the opposite of intelligent.

    Remember this pattern, the next time you hear the US referred to as "the land of the free."

     

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

  8.  
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    Padpaw (profile), Aug 18th, 2014 @ 10:50am

    Here I thought citizens were supposed to overthrow their government when said government proves it has open contempt for the laws they demand everyone else but them follow.

     

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

  9.  
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    Padpaw (profile), Aug 18th, 2014 @ 10:53am

    Re: Name change for relevance

    I hate saying this, but Americans need a bloodbath caused by their government to kick them into gear of tearing down the current criminal government. The constant apathy towards what goes on in their country as long as it does not happen to them is dooming them into becoming another Russia or North Korea.

     

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

  10.  
    identicon
    Anonymous Coward, Aug 18th, 2014 @ 11:38am

    I can't help it but the term "Ministry of Truth" comes to mind. Changing documents to fit the desired reality.

     

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

  11.  
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    Ninja (profile), Aug 18th, 2014 @ 12:01pm

    Re:

    And it's not less baffling even though we saw it coming from a fair distance.

     

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

  12.  
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    Namel3ss (profile), Aug 18th, 2014 @ 12:17pm

    Re: A devastating Freudian slip has occurred

    I noticed that too. Corporatocracy at its finest.

     

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

  13.  
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    Uriel-238 (profile), Aug 18th, 2014 @ 12:17pm

    Re: Name change for relevance

    I think DoJ is fine. It's just ironic like Minitrue and Miniluv.

     

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

  14.  
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    Uriel-238 (profile), Aug 18th, 2014 @ 12:21pm

    We need to stop relying on the DoJ for anything.

    This may, of course, involve getting creative with regards to how we settle disputes.

    And it will involve getting more creative to circumvent the decisions of the DoJ, especially when they serve to deflect transparency or justice from their handlers.

    I have said before that in a lot of circumstances, the presence of law enforcement only makes a situation worse. This is rapidly extending to the entire Department of Justice.

     

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

  15.  
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    Coyne Tibbets (profile), Aug 18th, 2014 @ 4:58pm

    Re: A devastating Freudian slip has occurred

    I think this is a tactical error. Basically, the US Government is saying it is responsible for everything, because "the company is our agent."

    No wonder they want this buried.

     

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

  16.  
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    bloodypitchfork (profile), Aug 18th, 2014 @ 7:08pm

    There are no words to describe this attempt by the DOJ to hide their contempt for the rule of law, notwithstanding the very entity that gives them their authority, which now, they have proved to despise. Even the name, Department of Justice, mocks the very concept. In my universe, this attempt at blatant tyranny would invoke a response of such magnitude, these chromosomally aberrant scumsucking maggots would explode in monumental fear for their heads. Fortunately for them, in this universe, there is still some remaining shreds of that concept, that will protect them from loosing their heads. That's not to say, they haven't completely lost their legitimacy. UNFORTUNATELY, as the USG is now a "legal imperialism", it appears the ONLY way the people will ever regain their rightful power to reign in this Executive gone mad, is total, unequivocal armed insurrection, as once a republic has become a legal imperialism, it will NEVER, EVER relinquish its armed power. However, it has now demonstrated in no uncertain terms, it's intention. And that is TOTALITARIANISM. After all..you just read the living proof.

     

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

  17.  
    identicon
    Rekrul, Aug 18th, 2014 @ 9:11pm

    Re:

    Here I thought citizens were supposed to overthrow their government when said government proves it has open contempt for the laws they demand everyone else but them follow.

    Why do you think the government has been militarizing the police? It's so they'll have a domestic army in place if the population was ever to revolt.

     

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

  18.  
    identicon
    Anonymous Coward, Aug 18th, 2014 @ 9:18pm

    Re: Re:

    Ding ding! Johnny, give the man a prize.

     

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

  19.  
    identicon
    LewisV, Aug 18th, 2014 @ 10:57pm

    "..The DOJ Has Nothing But Contempt For American Citizens"

    That's ok. The feeling is mutual.

     

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


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