EFF to Reggie Walton: Stuart Delery and John Carlin Are Still Materially Misleading FISA Court

In my latest post in DOJ’s apparent effort to destroy evidence pertinent to EFF’s several lawsuits in Northern District of CA, I noted that even after being ordered to explain their earlier material misstatements to the FISA Court, Assistant Attorneys General John Carlin and Stuart Delery left a lot of key details unsaid. Significantly, they did not describe the full extent of the evidence supporting EFF’s claims in the dispute (and therefore showing DOJ’s actions to be unreasonable).

Notwithstanding a past comment about preservation orders in the matters before Judge Walton, the government claims EFF’s suits are unrelated to the phone dragnet.

[T]he Government has always understood [EFF’s suits] to be limited to certain presidentially authorized intelligence collection activities outside FISA, the Government did not identify those lawsuits, nor the preservation order issued therein, in its Motion for the 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.

Note, to sustain this claim, the government withheld both the state secrets declarations that clearly invoke the FISC-authorized dragnets as part of the litigation, even though the government’s protection order invokes it repeatedly, as well as Vaughn Walker’s preservation order which is broader than DOJ’s own preservation plan. Thus, they don’t give Walton the things he needs to be able to assess whether DOJ’s actions in this matter were remotely reasonable.

Apparently, EFF agrees. EFF Legal Director Cindy Cohn wrote AAGs Stuart Delery and John Carlin to complain that they hadn’t referenced the evidence submitted by EFF to support its claims.

[W]e were dismayed to see that the government’s response to the FISC on pages 3-5 repeated its own arguments (plus new ones) about the scope of the Jewel complaint without referencing, much less presenting, plaintiffs’ counter-arguments. As you know, especially in our reply papers (doc. 196) in support of the TRO, plaintiffs presented significant argument and evidence that contradicts the government’s statement to the FISC that plaintiffs only “recently-expressed views” (pages 2, 7) regarding the scope of the preservation orders. They also also undermines [sic] the few paragraphs of the Jewel Complaint and some other documents that the government has cherry-picked to support its argument.

In addition, Cohn complains that the government has left the impression this dispute pertains solely to phone records.

[W]e are concerned that the FISC has not been put on notice that the scope of the dispute about the preservation order in Jewel (or at least the scope of the plaintiffs’ view of the preservation order) reaches beyond telephone records into the Internet content and metadata gathered from the fiberoptic cables of AT&T. This is especially concerning because the FISC may have required (or allowed) destruction of some of that evidence without the knowledge that it was doing so despite the existence of a preservation order covering that information issued by the Northern District of California.

Cohn’s invocation of Internet data is particularly important as it raises the second of two known illegal practices (the other being watchlisting US persons in the phone dragnet without the legally required First Amendment review) the data for which would be aging off now or in the near future: the collection of Internet content in the guise of metadata. I believe the Internet dragnet continued until October 30, 2009, so if they were aging off data for the 6 months in advance, might be aged off in the next week or so.

I’m really curious whether this spat is going to be resolved before Reggie Walton finishes his service on FISC on May 19.

But one thing is certain: it’s a lot more fun to watch the FISC docket when ex parte status starts to break down.

8 replies
  1. JohnT says:

    Materially Misleading

    Is that a polite euphemism for what people in the real world would call lying?

    And if a normal everyday person did what they’re doing in a courtroom, wouldn’t it be called perjury?

    (not criticizing. just rhetorical questions)

  2. earlofhuntingdon says:

    If only Judge Walton would impose sanctions against these government attorneys. Failing that, what will encourage them and their colleagues to stop lying?

    • chronicle says:

      quote”If only Judge Walton would impose sanctions against these government attorneys. Failing that, what will encourage them and their colleagues to stop lying?”unquote

      How about 400 thousand ARMED citizens who finally realized their only option is to surround WDC ready to drag these pond scum liars and psychopaths out of the their granite palaces and burn them alive in the hope their progeny has a place on the planet to survive.

    • Peterr says:

      If only Judge Walton would impose sanctions against these government attorneys.

      And, more critically, the relevant government officials that they represent. If Clapper, Alexander, Holder, et al. have their attorneys sanctioned, they can go out and get new attorneys. But if the principals are made to pay some kind of price, either personally or via their office, that would encourage better behavior.

      The phrase “suborning perjury” comes to mind. If the FISC determines that these statements are not errors but direct attempts to mislead, could they then order that there be some kind of inquiry to determine if the lawyers in question were directed to lie by their superiors?

      *That* would get the attention of a lot of executive branch officials.

  3. Nate says:

    Given that DOJ has consistently asserted “State Secrets” over the very subject of EFF’s lawsuit, the mere acknowledgement that data existed to be “preserved” would presumably reveal highly privileged information. Of course, DOJ could have complied with preservation orders from the outset without acknowledging whether any data existed to be preserved; it was only after they destroyed data and/or failed to notify FISA judges of pending litigation relevant their dragnet data collection activities, that they had to expose their own self-proclaimed “State Secrets” in the first instance.

    Regardless, the theory that EFF was SOLELY complaining about dragnet data collection authorized by the Executive Branch as opposed to the FISA court is about as credible as the “State Secrets” defense they continue asserting over information that is now squarely in the public domain.

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