To Hide Why Its State Secrets Invocation Is Bogus, Government Declares Public Information Top Secret

My profuse apologies to Preston Burton.

Back before it was clear why FISA Judge Michael Mosman appointed him to serve as amicus addressing the issue of retention of phone dragnet data, I suggested it might have been an effort to undermine EFF’s lawsuit against the government. After all, EFF plaintiff (in the First Unitarian Church suit challenging the dragnet) CAIR surely has standing to not only sue, but sue because of the way the dragnet chaining process subjected a bunch of CAIR’s associates to further NSA analysis solely because of their First Amendment protected affiliation with CAIR. But if the government gets to destroy all the dragnet data without first admitting that fact, then it will be hard to show how CAIR got injured.

In Burton’s reply to the government’s response to his initial brief on this question, he did the opposite, pressuring the government to find some way to accord the EFF plaintiffs standing. That led — we as we saw last week  — to an order from Mosman for briefing, due on January 8, on whether there’s a way to get rid of the data. That may not end up helping EFF, but it sure has put the government in a bad mood.

Burton spends just a few lines of his reply addressing the foremost question before him: whether the government could keep data past November 28. His points, however, are telling, in that he doesn’t seem convinced the government actually has destroyed the data aged off in the past.

[The government response] fails to provide the Court with a clear answer as to whether and how collections that should have been destroyed actually were destroyed.

That’s interesting given that, after the NSA “destroyed” the Internet dragnet data, NSA’s own Inspector General didn’t seem entirely convinced it had gotten destroyed.

As to the EFF data, Burton responds to the government’s snippy response, which I laid out here, by first calling out the government’s non-response to his own questions. Burton notes that he asked why the government hasn’t come to some stipulation that would permit it to destroy the data, after which the government “reinvent[ed] the questions” to pertain to the identity of providers, its pending state secrets invocation, and the potential one of the suits would become a class action. Claiming his “inquiries were not quite the calamities the government conjures to avoid answering the questions,” Burton then invited the court to consider whether the government is being obstinate.

The Court can consider the government’s litigation tactics and whether it is largely responsible for the duration of the preservation orders in the California cases in deciding whether to permit it in this Docket, not the other cases, to continue to retain millions of records. The government’s unwillingness to address its various litigation positions, some of which appear to have contributed to the prolonged hold, speaks volumes.

Then Burton focuses specifically on the government’s invocation of state secrets (which it has done in Jewel but not yet in First Unitarian).

For example, its resort to incanting the state secrets privilege seems rather energetic given the robust public discussion of this program, including the [three lines redacted]. The government also states, without more, that limiting the records it holds to those belonging to plaintiff is “entirely unworkable.” This Court may fairly probe whether that conclusory declaration is sufficient or meaningful. It would perhaps be expensive and time-consuming to segregate the data or otherwise pare the archive but that is a choice the government may be required to make in deciding to continue to burrow in on its standing and procedural challenges.

The entire paragraph was stamped TS//SI/OC/NF, suggesting that the government maintains the redacted information — which contextually must be public!! — is either Top Secret or Originator Controlled.

In other words, when Burton pointed out that the government was claiming state secrets rather more “energetically” than public disclosures merited, they claimed the public reason why that was the case was Top Secret.

I’m half wondering whether the government was even going to release this filing. Remember, when the other three filings on this issue got released, I predicted there was another, missing reply.

In addition to Mosman’s opinion, the FISC released amicus Preston Burton’s memo and the government’s response on December 2; I suspect there may be a Burton reply they have not released.

[snip]

Which leads me to the detail that makes me suspect there’s a second Burton filing the government hasn’t released (I’ve asked NSD but gotten no answer, and in his opinion Mosman says only “Mr. Burton and the government submitted briefs addressing this question,” leaving open the possibility Burton submitted two): After finding no reason to hold a hearing on the issue of restarting the dragnet during the summer, Mosman did hold a hearing here (though it’s not clear whether Burton attended or not). At the hearing, Mosman ordered the government to try to come up with a way to destroy the dragnets, which it will do by January 8.

Six days later (or sometime in the last six days), voila, the missing reply, showing Burton expressing clear doubt about government’s destruction plans not to mention their invocation of state secrets, but with the already released public explanation for why he had that doubt hidden under an equally dubious invocation of secrecy.

It sure seems like the government is working awfully hard to hide the fact that its state secrets aren’t actually all that secret.

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.

3 replies
  1. Evangelista says:

    Ms. Wheeler,

    Perhaps a shade wide of directly on topic, unless the topic is expanded to U.S. government chicanery, dodgery and duplicity in general as standard procedure, in the discussion of your 4 December discussion of “Correlations on Facebook” leading to identification of the woman San Bernardino shooter as an ISIS ‘pledge of allegience’, a poster, “Harpie”, queried, “I don’t know…would it be too cynical to think that there’s some…fabrication…going on here?”.

    The query did not generate any discussion. I thought this odd, because the circumstantial evidence of the case, like that of the Paris shootings, indicates the most probable instigator (s in both acts) the U.S. led and Western European condoned, if not participated in, armed drone terrorization and essentially random assassination activities. Especially in the San Bernardino case there was no introduction of Syrial Conflict association, except the to me seemingly dubious for being at a secondary extension, government alleged government discovered posting.

    Spoofing and false-posting being rather childishly simple, especially so where access is made easy by password insecuritie, and U.S. government intrusion and hacking inclinations, absence of ethics and lack of moral base making the U.S. government a logical suspect in any U.S. government self-serving manipulation of electronic data, is there any reason (that does not involve hyperventilating) that the Harpie suggestion should not be given serious consideration?

    Perhaps yourself, and perhaps also your tech poster Rayne, might discuss this, what would be involved, how easily possible, in view of government resources and “legal” accesses, and maybe how likely, given the government proclivity to dodgey self-serving behavior.

    I strongly suspect that 1. the San Bernardino attack was a reactionary response, instead of a terrorist attack, and 2. was/is known to be so, and 3. was considered for recognition as such to facilitate action against ‘whistleblowers’, including those who revealed the “fun-size terrorist” designation, one of which the shooters had between them, but was distanced from that by the planting of a false ISIS connection, because 1. the identification of such attacks as retaliatory for U.S. and Coalition drone-terrorizing of Middle-Eastern populations would bring that terrorizing into public discussion, and 2. exposition of the terrorizing producing backlash could induce serious discussion of drone terrorizing being terrorizing, and drone- assassination being murder.

    I apologize if this is out of place in your discussion framework; evidence analysis often takes longer than public interest is able to compass (which is a reason dragging red-herring across continuity trails is often successful).

  2. scribe says:

    Do recall that the aircraft accident report at issue in the Reynolds case, which brought the state secrets privilege on us fully formed like Athena delivered by the Supreme Court, was found in wholly unredacted form by the family of the dead aviator in a public database about 30 years after the government prevented them from getting it by invoking the privilege.

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