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
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.