FISA Court Finally Discovers a Limit to the Word “Relevant”

A few weeks back I laughed that, in a probable attempt to score political points against those challenging the phone dragnet by asking to retain the phone dragnet longer than 5 years, DOJ had shown a rather unusual concern for defendant’s rights.

Judge Reggie Walton has just denied DOJ’s motion. In doing so he has found limits to the word “relevant” that otherwise seem unheard of at the FISC in recent memory.

For its part, the government makes no attempt to explain why it believes the records that are subject to destruction are relevant to the civil cases. The government merely notes that “‘[r]elevant’ in this context means relevant for purposes of discovery, … including information that relates to the claims or defenses of any party, as well as information that is reasonably calculated to lead to the discovery of admissible evidence.” Motion at 6. Similarly, the government asserts that “[b]ased on the issues raised by Plaintiffs,” the information must be retained, but it fails to identify what those issues are and how the records might shed light on them. Id. at 7. Finally, the motion asserts, without any explanation, that “[b]ased on the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only the BR metadata specifically relevant to the identified lawsuits.” Id. Of course, questions of relevance are ultimately matters for the courts entertaining the civil litigation to resolve. But the government now requests this Court to afford substantial weight to the purported interests of the civil litigants in retaining the BR metadata relative to the primary interests of the United States persons whose information the government seeks to retain. The government’s motion provides scant basis for doing so.

Shew. Given the way FISC has been defining the word “relevant” since 2004 to mean “virtually all,” I had thought the word had become utterly meaningless.

At least we know the word “relevant” has some limits at FISC, even if they’re unbelievably broad.

Mind you, I’m not sure whether FISC or the government is right in this case, as I do have concerns about the data from the troubled period during 2009 aging off.

But I will at least take some Friday afternoon amusement that the FISC just scolded the government about the word “relevant.”

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
  1. What Constitution? says:

    Nah, the DOJ will just (next time) characterize today’s ruling as a discussion of what “are” means. Can’t be constrained by things like consistency or integrity where national security is at stake, you know. Indeed, they’re still crafting the brief designed to explain that the meaning of “relevant” is a state secret, including from the FISC.

  2. chronicle says:

    This is a test to see if changing my username or email..or both, will finally allow me to comment again after 2 months of what I think is NSA interdiction.

  3. chronicle says:

    emptywheel said..quote”Shew. Given the way FISC has been defining the word “relevant” since 2004 to mean “virtually all,” I had thought the word had become utterly meaningless.”unquote

    Given the DOJ’s TWO TIERED in-justice system whereby they prosecute people with impunity who are on the lower tier, like Aaron Swartz, and Barrett Brown, and let people like James Clapper, who lie through his teeth to a Congressional committee, off the hook, I’ve come to the conclusion “the rule of law” HAS become utterly meaningless.

  4. abbadabba says:

    “Probability” seems to have left the building. What’s the odds these frauds get away? Is that why they shut down that online Irish CDS dispensary? Dead giveaways.

    I like the way you roll, Wheel.

    I guess Jesse got tired of Walt bossing him around.

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