Delusional DOJ Claims Documents Declassified, Released Under FOIA Not Declassified, Not Authentic

Screen Shot 2015-08-28 at 11.22.34 AM
Back in March, NYT’s Charlie Savage sued to get the NSA to respond to a FOIA request asking for “copies of — and declassification review of, as necessary” a bunch of things, including IG reports on “bulk phone records collection activities under Section 215 of the PATRIOT Act.”

In late August, they delivered an installment of their response to that suit to him including a series of IG Reports on the 215 program. Among other things, the FOIA response included an August 2, 2010 letter to FISC Judge John Bates referring to a compliance violation in Docket BR 10-10 (the order is dated February 26, 2010). In referring to the caption of that docket (and the caption redactions in other dockets are consistent in size), it named Verizon Wireless.

As I pointed out at the time, this provides Larry Klayman and other Verizon Wireless subscribers challenging the phone dragnet basis to establish standing to sue. While in the Klayman suit, Judge Richard Leon invited Klayman just to add a plaintiff who subscribed to Verizon Business Services, in Northern CA, EFF requested the 9th Circuit take judicial notice of the document.

So now DOJ has gone a bit batshit. (Josh Gerstein first reported on this here.) It mocks that EFF head Cindy Cohn “apparently believes” it fair to conclude Verizon Wireless took part in the phone dragnet because of a reference to “a company name that includes the term ‘Verizon Wireless’ in the caption of a purported FISC filing” that happens to govern the entire phone dragnet. It suggests the accuracy of the document DOJ gave to Savage can be reasonably questioned, apparently disputing its own FOIA response to Savage. And it bitches that EFF “does not contend that this document was declassified,” even though it was given to Savage pursuant to his request for “declassification review [] as necessary.”

In short, in an effort to argue the document doesn’t say what it says (which may, I admit, not mean what it says, but such is the wackiness of the secret FISA Court and the secret phone dragnet), DOJ is saying that DOJ didn’t provide Charlie Savage authentic, declassified documents like he sued to get. DOJ uses words like “purported” to describe DOJ’s own FOIA response.

I mean, I’ll grant you, those of us outside DOJ often doubt the accuracy of their FOIA responses to us. But usually DOJ at least pretends they’re giving us authentic documents.

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.

7 replies
  1. scribe says:

    It was only a matter of time until DoJ got backed into this corner. LMFAO.
    .
    Now it’s just a matter of whether the courts allow them to get away with this shit.
    .
    Little strokes fell mighty oaks….
    .
    In other, OT, delusional news: apparently that hedge fund clown who jacked the price of a drug from $13.50/tablet to $750/tablet is not only saying he’ll back off the extortion. He’s also tangled in a criminal investigation of “manipulations” – he’s invoked the Fifth – and his former colleagues have received grand jury subpoenas. http://www.newsweek.com/martin-shkreli-drug-manipulation-daraprim-retrophin-375416
    Something about his chicaneries “… were so complex that they would put to shame the financial magicians at Enron”.
    .
    DoJ forced into a corner denying reality, Blankfein coming down with cancer, and now that hedge fund clown getting lined up for a fall. Great week!

    • emptywheel says:

      Yes. In cases like this I’m always torn between believing that competent FOIA response is hard, and so fuck-ups like this are bound to happen, or believing that FOIA people accidentally liberate things of particular value.

      • scribe says:

        The problem is they got their balls in a vise because (a) they had to tell the truth and (b) the truth is very uncomfortable to the positions they’ve been taking for years.
        .
        I’m betting on a state secrets declaration.

  2. CTuttle says:

    Marcy have you been following the Facebook/Safe Harbor challenge in the EU…?

    EU court deals blow to ‘invalid’ US data sharing deal

    A major data-sharing deal between the EU and US is ‘invalid’ given the spying revelations in the Edward Snowden scandal, the top EU court’s main legal advisor said Wednesday in a case brought against Facebook.

    The case stems from a complaint against Facebook lodged at Ireland’s data protection authority by Austrian right-to-privacy activist and law student Max Schrems.

    The complaint focused on a landmark deal reached by the European Commission with Washington 15 years ago that allows thousands of businesses operating in the EU to send the private data of Europeans to servers in the US.

    That 2000 data sharing deal, known as Safe Harbour, “is invalid”, said the advocate general’s recommendation.

    The Irish Data Protection Commission, which oversees compliance of privacy law in Ireland, had argued that Safe Harbour sufficiently protected Europeans.

    But in a strong-worded opinion, the court’s advisor Yves Bot singled out the US government for the “large scale” hoarding of European citizens private data.

  3. bloopie2 says:

    The Court should hold a hearing on the DOJ assertion that the Verizon Wireless document isn’t real. When the DOJ lawyer starts to argue, the Judge should ask, “How do I know you really represent the DOJ? I don’t believe you do. Prove it, and prove you are a lawyer, with more than paper (anyone can fake a business card or letterhead) and with more than a phone call (anyone can imitate someone on the other end of the phone line) and with more than some kind of online showing (that can be faked also). And by the way, even if I do believe you are who you say you are, how do I know that the position you are presenting is really authorized by the decision-maker (higher-up) in this case? Prove it. Otherwise you lose.” I’d love to be in that courtroom.

    • P J Evans says:

      It’s like ‘how do I know that this birth certificate is yours?’ when they’re using birth certs as proof of identity. Nothing to tie it to the person holding it….

Comments are closed.