Judge Reggie Walton Is Pissed that Government Is Making Material Misstatements to FISC, Again

FISA Court Chief Judge Reggie Walton just issued a rather unhappy order requiring the government to explain why it materially misstated the facts about whether any plaintiffs had protection orders that governed the phone dragnet.

Generally, he wants to know why the government didn’t tell him that EFF had protection orders in the Jewel and Shubert cases. More specifically, he wants to know why they didn’t tell him that — as I reported here — the EFF had asked the government how they could claim there was no protection order when they had one in their suits of the larger dragnet.

A review of the E-mail Correspondence indicates that as early as February 26, 2014, the day after the government filed its February 25 Motion, the plaintiffs in Jewel and First Unitarian indeed sought to clarify why the preservation orders in Jewel and Shubert were not referenced in that motion. E-mail Correspondence at 6-7. The Court’s review of the E-mail Correspondence suggests that the DOJ attorneys may have perceived the preservation orders in Jewel and Shubert to be immaterial to the February 25 Motion because the metadata at issue in those cases was collected under what DOJ referred to as the “President’s Surveillance Program” (i.e., collection pursuant to executive authority), as opposed to having been collected under Section 215 pursuant to FISC orders — a proposition with which plaintiffs’ counsel disagreed. Id at 4. As this Court noted in the March 12 Order and Opinion, it is ultimately up to the Northern District of California, rather than the FISC, to determine what BR metadata is relevant to the litigation pending before the court.

As the government is well aware, it has a heightened duty of candor to the Court in ex parte procedings. See MODEL RULES OF PROF’L CONDUCT R. 3.3(d) (2013). Regardless of the government’s perception of the materiality of the preservation orders in Jewel and Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government’s February 25 Motion. E-mail Correspondence at 6-7. The fact that the plaintiffs had this understanding of the preservation orders–even if the government had a contrary understanding–was material to the FISC’s consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court’s statement, based on the information provided by the government in the February 25 Motion, that “there is no indication that nay of the plaintiffs have sought discovery of this information or made any effort to have it preserved.” March 7 Opinion and Order at 8-9.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs’ understanding of their scopre, regardless of whether the plaintiffs had made a “specific request” that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs’ counsel from immediately raising this issue with the FISC or the Northern District of California. E-mail Correspondence at 5.

In a number of places, Walton provides an out for the government, suggesting they might just be stupid and not obstructing (those are my words, obviously). He even goes so far as to suggest that DOJ might have an internal communication problem between the Civil Division, which is litigating the EFF suits, and the National Security Division, which works with FISC.

But then he notes that both Civil AAG Stuart Delery and Acting NSD AAG John Carlin submitted the filings to him.

The government’s failure to inform the FISC of the plaintiffs’ understanding that the prior preservation orders require retention of Section 591 telephony metadata may have resulted from imperfect communication or coordination within the Department of Justice rather than from deliberate decision-making.4 Nonetheless, the Court expects the government to be far more attentive to its obligations in its practice before this Court.

4 Attorneys from the Civil Division of the Department of Justice participated in the E-Mail Correspondence with plaintiffs’ counsel. As a general matter, attorneys from the National Security Division represent the government before the FISC. The February 25 Motion, as well as the March 13 Response, were submitted by the Assistant Attorney General for the Civil Division and the Acting Attorney General for the National Security Division.

Frankly, I hope Walton ultimately tries to learn why he wasn’t told about these protection orders in more detail years ago, when the government was deciding whether or not to destroy evidence of lawbreaking that Walton first identified in 2009. I also hope he gets to the bottom of why Deputy Attorney General James Cole had to intervene in this issue. But for now, I’m happy to see DOJ taken to the woodshed for misinforming the Court.

Update: Meanwhile, on the other coast, Judge Jeffrey White issued a protection order that is far broader than the government would prefer it to be. The government had implied that the First Unitarian Church suit only covered Section 215; earlier this week (I’ve got a post half written on it), EFF argued they’re challenging the dragnet, irrespective of what authorization the government used to collect it. Nothing in White’s order limits the protection order to Section 215 and this passage seems to encompass the larger dragnet.

Defendants’ searching of the telephone communications information of Plaintiffs is done without lawful authorization, probable cause, and/or individualized suspicion. It is done in violation of statutory and constitutional limitations and in excess of statutory and constitutional authority. Any judicial, administrative, or executive authorization (including any business records order issued pursuant to 50 U.S.C. § 1861) of the Associational Tracking Program or of the searching of the communications information of Plaintiffs is unlawful and invalid.

Update: fixed a typo in which I inadvertently said Walton caused rather than found the lawbreaking in 2009.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

11 replies
  1. P J Evans says:

    It’s probably too much to hope that Reggie will start procedures to discipline the goverment lawyers for repeated stupidity (if not lying to the court).

  2. GKJames says:

    After what he’s seen from his time on the FISC, could Walton credibly still ascribe this to DOJ’s being dim? Only when law licenses are placed in jeopardy will there be a chance for the nonsense to stop.

  3. chronicle says:

    First off, emptywheel, you are amazing. I try to keep up with your incredible introspection of distantly related daily legal events. How do you do it? Regardless, my appreciation is boundless.

    Second, as if everyone here doesn’t already appreciate the fact the lawyers of the DOJ are in fact, employed to do one thing. Protect the Plutocracy. In reality, rule of law is subjective and enforced by Legal Imperialism. In other words..those with the power of the Iron Fist of the monopoly of violence will exercise their rule…ie.. Supranational Sovereignty..ie.. the USG Executive branch is PRECISELY the world wide power of the United States Corporatacracy ruling class, and will do ANYTHING…ANYTHING, ..CIA overthrow of governments, invading other sovereign nations, spying on the entire planet while thwarting Congress, torture, murder, assassinations, lying, and anything the human mind can comprehend, and then some, to keep these pond scum sub-human excrement from being executed.

  4. Peterr says:

    Reggie is not a happy camper.

    On page two, he notes that the FISC has the inherent authority to grant amicus status to those who “are seeking to provide the Court with information that might otherwise escape its attention” and they choose to do so with EFF. Between the lines, he’s saying “You know, the government knew about this all along and didn’t tell us, so we’re going to listen to these other folks a bit more often.”

    This is *not* good news for the government which appears to revel in ex parte sessions. They really better start worrying about him making a comment about filings from the government being beneath the standards of first year law students, because they’re moving dangerously close to that poor measure.

    • Peterr says:

      Back in the day, Scooter was on trial before Walton for lying to a grand jury, which did not sit well with him at all, and he made that clear in his rulings and his final opinion. Having the government lie by omission to him — when there is not an opposing counsel to challenge the lies — must really really really irritate him.

      A question: does the same DOJ/DOD/NSA attorney do most of the pleading before the FISC, or do they get a bunch of different lawyers depending on the specific motions before them? If it’s the former, I suspect that said attorney may soon be assigned to other duties, so as not to unduly remind Walton of the government’s earlier omissions and less-than-forthright filings.

  5. Betty says:

    It is way past time for these DOJ lawyers to be sanctioned by the court. This is blatant disrespect and should not be tolerated.

  6. john francis lee says:

    Has Reggie got a son ? They’ll just give the kid his own hehttp://www.thedailybeast.com/articles/2014/02/27/get-elected-get-your-kids-rich-washington-is-spoiled-rotten.htmldge fund, and their problems will disappear … just like they did when Ron Wyden’s son got his.

    Take Senator Ron Wyden’s son, Adam—directly upon graduation from his Columbia MBA program he started his own hedge fund, no doubt capitalizing on contacts he made interning at the $19-billion fund of one of his father’s supporters, David Shaw. “Not many college kids get to intern on a D.E. Shaw portfolio for the summer,” Brian Marshall, who once ran the fund, was quoted as saying in a 2011 Bloomberg article on the younger Wyden.

  7. Dredd says:

    Judge Walton took a step in the proper direction. What remains to be seen is whether it is feigned or real over the longer term.

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