from the look-over-there! dept
This detail actually came out just a few weeks before the DC circuit ruling, in a NY Times story based on documents it obtained via a FOIA request and lawsuit. The article was officially about US officials using the phone records program to target Iran, but as Marcy Wheeler pointed out at the time, that fact wasn't really new or surprising. The really new thing, buried in the documents, was that Verizon Wireless participated in the phone records program. You see, as part of that data dump (which was forced upon the government by the FOIA lawsuit), there's a letter sent to Judge John Bates on the FISA Court, telling him about "a compliance incident." And in that letter, it's made clear that the program includes Verizon Wireless among others:
Plaintiff’s request for judicial notice is improper. Whether Verizon Wireless has participated in the Section 215 bulk telephony-metadata program is not “an adjudicative fact,” within the meaning of the rule plaintiffs invoke.... An adjudicative fact is one that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” id., such as when the document was filed.... It is not appropriate to take judicial notice of disputed factual matters.Huh. So is the DOJ really asserting that a document the government itself released that says Verizon Wireless was a part of the program is a disputed fact? Yes. Yes, it is.
Plaintiff asserts... that the document she relies on was released by the government in response to a Freedom of Information Act (FOIA) request. But plaintiff does not contend that this document was declassified, and in fact the government has not confirmed the authenticity of the document plaintiff has produced or of any facts plaintiff purports to infer from it. The identities of the providers who have participated in the Section 215 bulk-telephony metadata program, apart from the fact that Verizon Business Network Services (VBNS) participated for a time in 2013, remain classified.... The extent to which any other carrier has participated in a government intelligence-gathering program could not be deduced merely from the caption of any purported legal filing, especially one that does not specify the scope of a proceeding, or state explicitly the nature of the carrier’s involvement in a particular matter being addressed.Wow. So the government released this document (following a FOIA lawsuit) and now the government claims that the fact that Verizon Wireless is listed in there is still a classified bit of information, and no one (mainly the court) should read anything more into it. As the ACLU told Politico in response to this:
"The secrecy here is entirely a fiction. The purpose of it is to insulate the government's surveillance activities from judicial review," the ACLU's Jameel Jaffer said. "We now live in a kind of bizarre world where their position is that [the letter disclosed to the Times] doesn't count and that the term 'official disclosure' is drawn so narrowly that it is excludes their own affirmative disclosure on their own letterhead. ... It’s a fiction that bears no relation to reality and, at a certain point, I think -- I hope -- courts aren't going to entertain that fiction anymore."We shall see.