DOJ Threatens to Invoke State Secrets Over Something Released in FOIA

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In a hearing today, Judge Richard Leon said that Larry Klayman could pursue his dragnet challenge by adding a plaintiff who did business with Verizon Business Services. But as part of Klayman’s effort, he noted — weakly — that evidence got released showing Verizon Wireless was included in the dragnet. Klayman cited just the Charlie Savage article, not the document released under FOIA showing VZ Wireless on a FISC caption (though I presume his underlying 49 page exhibit includes the actual report — just not necessarily with the passage in question highlighted).

It was disclosed on August 12, 2015 by Charlie Savage of The New York Times that Verizon Wireless, as this Court had already ruled in its Order of December 16, 2013, at all material times was conducting and continuing to conduct unconstitutional and illegal dragnet “almost Orwellian” surveillance on Plaintiffs and millions of other American citizens. See Exhibit 1, which is a Government document evidencing this, incorporated herein by reference, and see Exhibit 2, the New York Times article.

Moreover, Klayman surely overstated what the inclusion of VZ Wireless in a phone dragnet Primary Order caption from 2010 showed. Which probably explains why DOJ said “The government has not admitted in any way, shape, or form that Verizon Wireless participated” in the Section 215 phone dragnet, according to Devlin Barrett.

The point is, they should have to explain why it is that, according to a document they’ve released, VZ Wireless was targeted under the program. Perhaps we’ll get that in Northern California, where EFF very competently pointed to what evidence there was.

Which is why the government’s threat to invoke state secrets was so interesting.

The Court should avoid discovery or other proceedings that would unnecessarily implicate classified national-security information, and the potential need to assert and resolve a claim of the state secrets privilege: Plaintiffs’ proposed amendments, in particular their new allegations regarding the asserted participation of Verizon Wireless in the Section 215 program, implicate matters of a classified nature. The Government has acknowledged that the program involves collection of data from multiple telecommunications service providers, and that VBNS (allegedly the Little Plaintiffs’ provider) was the recipient of a now-expired April 25, 2013, FISC Secondary Order. But otherwise the identities of the carriers participating in the program, now, or at any other time, remain classified for reasons of national security. See Klayman, 2015 WL 5058403, at *6 (Williams, S.J.).

At this time the Government Defendants do not believe that it would be necessary to assert the state secrets privilege to respond to a motion by Plaintiffs for expedited injunctive relief that is based on the allegations of the Little Plaintiffs, or even the proposed new allegations (and exhibit) regarding Verizon Wireless. Nor should it be necessary to permit discovery into matters that would risk or require the disclosure of classified national-security information and thus precipitate the need to assert the state secrets privilege. Nevertheless, if Plaintiffs were permitted to seek discovery on the question of whether Verizon Wireless is now or ever has been a participating provider in the Section 215 program, the discovery sought could call for the disclosure of classified national-security information, in which case the Government would have to consider whether to assert the state secrets privilege over that information.

As the Supreme Court has advised, the state secrets privilege “is not to be lightly invoked.” United States v. Reynolds, 345 U.S. 1, 7 (1953). “To invoke the . . . privilege, a formal claim of privilege must be lodged by the head of the department which has control over the matter after actual personal consideration by that officer.” Id. at 7-8. To defend an assertion of the privilege in court also requires the personal approval of the Attorney General. Policies and Procedures Governing Invocation of the State Secrets Privilege at 1-3, http://www.justice.gov/opa/documents/state-secret-privileges.pdf. The Government should not be forced to make so important a decision as whether or not to assert the state secrets privilege in circumstances where the challenged program is winding down and will end in a matter of weeks. Moreover, discovery into national-security information should be unnecessary to the extent the standing of the newly added Little Plaintiffs, and the appropriateness of injunctive relief, may be litigated without resort to such information.

If, however, discovery into national-security information is permitted, the Government must be allowed sufficient time to give the decision whether to assert the state secrets privilege the serious consideration it requires. And if a decision to assert the privilege is made, the Government must also be given adequate time to prepare the senior-level declarations and other materials needed to support the claim of privilege, to ensure that the national security interests at stake are appropriately protected. See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1077, 1090 (9th Cir. 2009).

I think it’s quite possible that VZW was not turning over phone records under the Section 215 program in 2010 (which is quite another matter than suggesting NSA was not obtaining a great deal, if not most, of VZW phone records generally). I believe it quite likely NSA obtained some VZW records under Section 215 during the 2010 period.

But I also believe explaining the distinctions between those issues would be very illuminating.

Meanwhile, the threat of stalling, with all the attendant rigamarole, served to scare Leon — he wants this to move quickly as badly as Klayman does. After all, Leon will have much less ability to issue a ruling that will stand after November 28, when the current dragnet dies.

We shall see what happens in CA when DOJ attempts to make a similar argument.

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.

9 replies
  1. orionATL says:

    why not try it.

    it always works with the quality of judges at all levels that we have today,

    despite the hundred years history of gov abuse that lies behind this legal tactic, and it is just that, a legal tactic designed to intimidate our take-the-easy-road-to-retirement federal judges.

  2. TarheelDem says:

    US v Reynolds itself lightly invoked state secrets to cover up an accident report.

    At what point does this state secrets farce get struck down? It’s the magic wand in these cases. DOJ waves it, and the case disappears.

  3. Jamesjoyce says:

    This program is not Orwellian. It is fascist. In fact to much is being hidden from America under a misapplication of states secrets doctrine.

    Truth sucks…

  4. wallace says:

    quote”I think it’s quite possible that VZW was not turning over phone records under the Section 215 program in 2010 ….(snip)

    I believe it quite likely NSA obtained some VZW records under Section 215 during the 2010 period.”unquote
    HUH????????????

    quote”But I also believe explaining the distinctions between those issues would be very illuminating.”unquote

    ummm… I don’t get it. what part am I missing here? What distinctions?

    • wallace says:

      quote”ummm… I don’t get it. what part am I missing here? What distinctions?”unquote

      I may be stupid in some peoples eyes, but I think my question is valid. So why don’t I EVER get answers to my questions from emptywheel? After all..I spend my time supporting this blog.

      • Evangelista says:

        Wallace,

        I think the difference you are trying to decipher, between VZ Wireless ‘providing’ records and records being ‘obtained’ from VZ Wireless is between VZW being a participant in a Section 215 phone records heist or being a victim of (a) Section 215 phone records heist(s).

  5. wallace says:

    quote”Nevertheless, if Plaintiffs were permitted to seek discovery on the question of whether Verizon Wireless is now or ever has been a participating provider in the Section 215 program, the discovery sought could call for the disclosure of classified national-security information, in which case the Government would have to consider whether to assert the state secrets privilege over that information.”unquote

    Nevertheless, if defendant feels it must, by all means, prove to this court you are not bluffing, as the 4th Amendment is worth a good fight and the plaintiff would love to legally kick your ass should you fail. However, should the USG’s state privilege claim prove worthless due to any reason whatsoever, I would hope the judge would come down on these fucking US Attorneys so hard they would have to dig a 10′ deep hole and bury themselves, notwithstanding awarding plaintiffs such substantial awards as to bankrupt the NSA as well.

    I can dream can’t I?

  6. Peterr says:

    Assistant Attorney General Franz Kafka is certainly earning his keep these days with all the briefs like these he is writing for the DOJ.

  7. Garrett says:

    This threat, that the discovery should not be sought, because the government might then possibly assert that the discovery cannot be sought, seems in one way kind of unripe. And in another way as way ripe, pretty well on to rotten.

Comments are closed.