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The Government Spoliationing for a Fight with EFF

On November 6, 2007, Judge Vaughn Walker issued a preservation order in EFF’s challenge to what we now know to be Stellar Wind, the Shubert case (which would be applied to the Jewel case after that). Nevertheless, in spite of that order, in 2009 the NSA started destroying evidence that it had collected data outside of the categories Judge Colleen Kollar-Kotelly authorized way back in 2004.

Also in 2009, NSA shifted records showing 3,000 people — which highly likely included CAIR’s staff and clients — had been dragnetted without the First Amendment review mandated by Section 215 (CAIR wasn’t a plaintiff on EFF’s earlier suits but they are on EFF’s phone dragnet suit, First Unitarian United). When they did, the government even appeared to consider the existing protection order in the EFF case; I have FOIAed their deliberations on that issue, but thus far have been stonewalled.

Finally, in 2011, NSA destroyed — on very little notice and without letting their own IG confirm the destruction of data that came in through NSA’s intake process — all of its Internet dragnet data.

In other words, on three known occasions, the NSA destroyed data covered by the protection order in Northern California, one of them even after admitting a protection order might cover the data in question. In two of those cases, we know the data either exceeded FISA’s orders or violated the law.

In fact, it wasn’t until 2014, when the government started asking Judge Reggie Walton for permission to destroy the phone dragnet data and EFF complained mightily, that NSA started complying with the earlier protection order. Later that same year, it finally asked FISC to keep the Protect America Act and FISA Amendments Act data also included under that order in its minimization procedures.

These posts provide more background on this issue: postpost, post, post.

In other words, on three different occasions (even ignoring the content collection), NSA destroyed data covered by the protection order. spoiling the evidence related to EFF’s lawsuits.

Which is why I find this claim — in the January 8 filing I’ve been waiting to read, but which was just posted on March 4 (that is, 5 days after the NSA would have otherwise had to destroy everything on February 29 under USA Freedom Act).

The Government remains concerned that in these cases, absent relief from district courts or explicit agreement from the plaintiffs, the destruction of the BR Metadata, even pursuant to FISC Order, could lead the plaintiffs to accuse the Government of spoliation. In Jewel, the plaintiffs have already moved for spoliation sanctions, including an adverse inference against the Government on the standing issue, based on the destruction of aged-off BR Metadata undertaken in accordance with FISC Orders. See Jewel Pls.’ Brief Re: the Government’s Non-compliance with the Court’s Evidence Preservation Orders, ECF No. 233.

Gosh, after destroying data on at least three different occasions (again, ignoring at least two years of content they destroyed), the government is worried that if it destroyed more it might get in trouble? Please!

Elsewhere, the strategy in this filing seems to be to expand the possible universe they’d have to set aside under the three cases (plus Klayman) for which there is a protection order as to make it virtually impossible to set it aside so as to destroy the rest. In addition, having let the time when they could have set aside such data easily pass because they were still permitted to access the data (say, back in 2014, when they got caught violating their protection order), they now claim that the closure of the dragnet makes such a search virtually impossible now.

It’s a nifty gimmick. They can’t find a way to destroy the data because they already destroyed even legally suspect data. And we learn about it only now, after the data would otherwise be destroyed, but now can’t be because they didn’t find some better resolution 2 years ago.

FISC Still Sitting on Government Proposal for EFF Data

When last we checked in with the new-and-improved post USA Freedom Act FISA Court, amicus Preston Burton had helped the Court finish off the Section 215 dragnet with a strong hand, in part by asking a bunch of questions that should have been asked 9 years earlier. And in a reply to the government (the reply was released belatedly), Burton made an argument that led first to a hearing on the issue and then a briefing order for ways the government might stipulate to something in the EFF lawsuits so as to permit the FISC to lift the protection order requiring all Americans’ phone records to be kept indefinitely.

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.

That brief would have been due last Friday, but thus far it has not shown up in the FISC docket. And we don’t even know what the process from here would be, such as whether one of the newly appointed amici will be asked to help Michael Mosman determine the outcome of the EFF data, or whether the government will be able to argue whether it should have to accommodate this lawsuit without adversary. EFF did send a letter laying out what they’d like to happen, which the government submitted along with its response.

But since then we’ve heard nothing.

10 Goodies USA Freedom Act Gives the Intelligence Community

Since the Paris attack has turned much of our country into a shriveling pack of cowards, Republicans have ratcheted up claims that USA Freedom Act will make us less safe. Those claims tend to be so ignorant they claim the law — passed in June but not fully implemented until a week from Sunday — prevented the Intelligence Community from preventing the Paris attack. That would not be possible for two reasons. First, because the key provision hasn’t started yet (though some of the benefits for the IC have). And, because according to reports the network that carried out the Paris attack had no ties to the US, and therefore the dragnet couldn’t have shown anything useful.

All that said, I thought both the fear-mongering and the imminent changeover made it a good time to update (and in a few places, correct) this post, which laid out 10 things the IC gets out of USAF.

1. Inclusion of cell and (probably) some Internet “calls” in chaining system

Since early 2014, intelligence sources have been leaking that the phone dragnet misses 70% of US calls. That number is probably an exaggeration (and doesn’t account for what the NSA collects under significantly redundant collection under EO 12333). But there are probably several reasons for why the old dragnet had incomplete coverage. First, providers that only keep cell records with location data attached could not be obligated to turn over those records under the existing program (when AT&T started turning over cell records in 2011, it stripped location data for the NSA voluntarily, but no providers were obligated to do so). In a declaration submitted in Larry Klayman’s challenge to the phone dragnet, NSA makes it clear the ability to demand production in the form NSA wants is one big difference in the program (as is having facilities onsite, which probably mirrors the PRISM program).

Screen shot 2015-11-20 at 11.33.10 AM

In addition, USA Freedom is technology neutral; unlike phone dragnet orders, it does not limit collection to telephony calls, though it does limit collection to “phone companies,” which I presume includes handset makers Apple, Microsoft, and Google. This probably means the government will fill the gap in calls that has been growing of late, probably including VOIP and iMessage.

2. Addition of emergency provision for all Section 215 applications

Before USAF passed, there was a FISC-authorized emergency provision for the phone dragnet, but not the rest of Section 215 production. That was a problem, because the most common use of Section 215 is for more targeted (though it is unclear how targeted it really is) Internet production, and the application process for Section 215 can be slow. USAF made emergency application procedures available for all kinds of Section 215 applications.

3. Creation of parallel construction loophole under emergency provision

Not only does USAF extend emergency provision authority to all Section 215 applications, but it changes the status quo FISC created in a way that invites abuse. That’s because, even if the FISC finds an agency collected records improperly under the emergency provision, the government doesn’t have to destroy those records. It prohibits the use of “derivative” evidence in any proceeding, but there is abundant reason to believe the government still finds a way to parallel construct evidence even in other laws with such limitation on “derivative” evidence and so we should expect the same to happen here. The risk that the government will do this is not illusory; in the 18 months or so since FISC created this emergency provision, they’ve already had reason to explicitly remind the government that even under emergency collection, the government still can’t collect on Americans solely for First Amendment protected activities.

4. Chaining on “connections” rather than “calls,” which might be used to access unavailable smart phone data

Rather than chaining on calls made, USAF chains on “connections,” with Call Detail Record defined based on “session identifier.” This is probably intended to permit the government to obtain the call records of “correlated” identities, including things like all the records from a “Friends and Family” account. And while the House Report specifically prohibited some potentially troubling uses (like having providers chain on location information), in the era of smart phones and super cookies, the language of the bill leaves open the possibility of vastly expanded “connections.”

5. Elimination of pushback from providers

USAF gives providers two things they don’t get under existing Section 215: immunity and compensation. This will make it far less likely that providers will push back against even unreasonable requests. Given the parallel construction loophole in the emergency provisions and the potentially expansive uses of connection chaining, this is particularly worrisome.

6. Expansion of data sharing

Currently, chaining data obtained under the phone dragnet is fairly closely held. Only specially trained analysts at NSA may access the data returned from phone dragnet queries, and analysts must get a named manager to certify that the data is for a counterterrorism purpose to share outside that group of trained analysts. Under this new law, all the returned data will be shared — in full, apparently — with the NSA, CIA, and FBI. And the FBI is exempted from reporting on how many back door searches it does of this data.

Thus, this data, which would ostensibly be collected for a counterterrorism purpose, will apparently be available to FBI every time it does an assessment or opens up certain kinds of intelligence, even for non-counterterrorism purposes. Furthermore, because FBI’s data sharing rules are much more permissive than NSA’s, this data will be able to be shared more widely outside the federal government, including to localities. Thus, not only will it draw from far more data, but it will also share the data it obtains far more broadly.

7. Mooting of court challenges

As we’ve seen in both ACLU v. Clapper and Klayman v. Obama, USAF mooted court challenges to the dragnet, including ones that looked likely to rule the expansive “relevant to” based collections unconstitutional. In addition, the law may moot EFF’s First Unitarian Church v. NSA challenge to the dragnet, which of all the challenges is most likely to get at some of the underlying constitutional problems with the dragnet.

8. Addition of 72-hour spying provisions

In addition to the additional things the IC got related to its Section 215 spying, there are three unrelated things the House added. First, the law authorized the “emergency roamer” authority the IC has been asking for since 2013. It permits the government to continue spying on a legitimate non-US target if he enters the US for a 72-hour period, with Attorney General authorization. While in practice, the IC often misses these roamers until after this window, this will save the IC a lot of paperwork and bring down their violation numbers.

9. Expansion of proliferation-related spying

USAF also expanded the definition of “foreign power” under FISA to include not just those proliferating in weapons of mass destruction, but also those who “knowingly aid or abet” or “conspire” with those doing so. This will make it easier for the government to spy on more Iran-related targets (and similar such targets) in the US.

10. Lengthening of Material Support punishments

In perhaps the most gratuitous change, USAF lengthened the potential sentence for someone convicted of material support for terrorism — which, remember, may be no more than speech! — from 15 years to 20. I’m aware of no real need to do this (except, perhaps, to more easily coerce people to inform for the government). But it is clearly something someone in the IC wanted.

Let me be clear: some of these provisions (like permission to chain on Internet calls) will likely make the chaining function more useful and therefore more likely to prevent attacks, even if it will also expose more innocent people to expanded spying. Some of these provisions (like the roamer provision) are fairly reasonably written. Some (like the changes from status quo in the emergency provision) are hard to understand as anything but clear intent to break the law, particularly given IC intransigence about fixing obvious problems with the provision as written. I’m not claiming that all of these provisions are bad for civil liberties (though a number are very bad). But all of them are (or were, for those that have already gone into force) clear expansions on the authorities and capabilities the IC used to have.

Q: Whose Secrets Are More Sensitive than the DC Madam’s? A: NSA’s.

On September 17, FISC Judge Michael Mosman appointed the first known amicus under the terms laid out in USA F-ReDux; notice of which got posted yesterday (Mosman could have done so before USA F-ReDux, of course, but he did cite the statute in making the appointment). The question this amicus will help him determine is whether FISC should permit the government to retain bulk collected data past November 28, when the six month extension of the program ends. The government wants to retain the data it is collecting today for three months to make sure the new dragnet program collects the same data as the last one. But the data in question also includes data being held under an old protection order renewed last year as part of EFF’s suits against government dragnets; I suspect that data would show the extent to which one of the plaintiffs in EFF’s First Unitarian Church suit was dragnetted, and as such is critical to showing injury in that suit.

Mosman had deferred the decision on whether or not to let the government keep that data when he signed the August 28 dragnet order.

So who is the lawyer who will represent the interests of civil liberties and privacy in this question? [Update: In this post, I note Mosman may not have appointed Burton to represent privacy at all.]

White collar defense attorney Preston Burton. In addition to Russian moles Aldrich Ames and Robert Hanssen, Burton represented Monica Lewinsky and the DC Madam, Deborah Jeane Palfrey.

Burton is, undoubtedly, an excellent lawyer. And his experience representing the biggest spies of the last several decades surely qualifies him to work with the phone dragnet data, including data that probably shows NSA mapped out an entire civil liberties’ organization’s structure using the phone dragnet 5 years ago. Though given this description, it’s not clear Burton would learn of that information from the government’s application, which is what he’ll get.

Pursuant to 50 U.S.C. § l 803(i)(6)(A)(i), the Court has detennined that the government’s application (including exhibits and attachments) and the full, unredacted Primary Order in this docket are relevant to the duties of the amicus. By September 22, 2015, or after receiving confirmation from SEPS that the amicus has received the appropriate clearances and access approvals for such materials, whichever is later, the Clerk of the Court shall make these materials available to the amicus.

Moreover, remember the government can claim privilege over this data and not share it with Burton. Mosman even invited the government to tell the Court sharing information with Burton was not consistent with national security (though he set a deadline for doing so for September 21, so I assume they did not complain).

But it’s entirely unclear to me why Burton would be picked to represent the privacy interests of Americans, including those whose First Amendment rights had been violated under this program, in deciding whether to keep or destroy this data. Mosman made no mention of those interests when he explained his choice.

Mr. Burton is well qualified to assist the Court in considering the issue specified herein. The Security and Emergency Planning Staff (SEPS) of the Department of Justice has advised that he is eligible for access to classified information.

Which is why I take this to be one more in the series of Burton’s famous clients, in which discretion about DC’s secrets is the most important factor.

The October 30, 2009 Statement of Authorities: The EFF Document Fight Could Get Very Interesting

If the Chief FISC Judge accuses the government of material misrepresentations but no one but a dirty fucking hippie blogger reports it, did it happen?

On Friday, I reported on Judge Reggie Walton’s cranky opinion asking for an explanation about why the government didn’t tell him EFF believed they had a protection order in cases relevant to the dragnets. And while it overstates the resounding silence to say that only your esteemed DFH host reported it — TechDirt had a good reportsome of the other reporting on it thus far seems to have missed the whole material misrepresentation judgement in Walton’s order.

But I think it’s not yet clear — to anyone — how interesting this document fight could get.

Just as one example of why (I’ll develop some of the others over the next couple of days, I hope), consider the October 30, 2009 statement of authorities.

Earlier this month, I noted that EFF had submitted a list of filings that the government had not released in spite of what they believed to be Judge Jeffrey White’s order to declassify everything.

  • April 9, 2007 notices indicating FISC Judge rejected early bulk orders
  • October 25, 2007 government challenge to motion to protect evidence, with ex parte NSA official declaration submitted in Shubert
  • April 3, 2009 supplemental memorandum in Jewel
  • October 30, 2009 supplemental memorandum on points of authority in Shubert
  • November 2012

In last Wednesday’s hearing, the government claimed they didn’t have to release these because they engaged in a colloquy limiting White’s orders to the state secrets declarations. And for the moment, I’ll take that as accurate.

But since then, the government has released one of these — the October 25, 2007 challenge to the protection motion — as part of their filing on Monday fighting a protection order in EFF’s phone dragnet suit. And that document was pretty stunning. Not only did it show the government had redefined the Multidistrict Litigation suits so as to exclude any of the FISA-authorized metadata dragnets that EFF of course had no way of knowing about yet. But in the filing, the government revealed that because of this filing and in defiance of Vaughn Walker’s November 2007 protection order, it has been destroying the metadata dragnet data in the interim.

In other words, the government is withholding these filings because they’re fairly damning.

Which got me thinking about the timing and significance of the October 30, 2009 supplemental memorandum on points of authority supporting a motion to dismiss the Shubert suit based on sovereign immunity and state secrets.

At one level, the memorandum is not all that suspicious. As you can see above, the government filed what is presumably roughly the same filing at the analogous time in Jewel, just as it was making its state secrets bid.

But I find the timing of the October 30 filings in Shubert to be of particular interest. That’s because a 2011 NSA training program seems to indicate that the Internet dragnet shut down at almost precisely that time, as it indicates that Internet dragnet data collected prior to November 2009 requires some sort of special treatment.

In addition, in the source information at the end of the line, the SIGAD [redacted] BR data can be recognized by SIGADs beginning with [redacted] For PR/TT, data collected after October 2010 is found [redacted] For a comprehensive listing of all the BR and PR/TT SIGADs as well as information on PR/TT data collected prior to November of 2009, contact your organization’s management or subject matter expert.

Remember, Shubert was suing for illegal wiretapping. And while Judge John Bates did not fully assess what NSA was doing — which appears to be collecting data that counts as content in the guise of collecting metadata — until the following year (some time between July and October 2010), when he did so, he implied the government had to comply with the laws in which they were claiming, in 2009, they had sovereign immunity. And the government had to know by that point they had serious legal problems with the Internet dragnet.

Indeed, the government kept asking for extensions leading up to this filing — at the time they claimed it was because of DOJ’s whats-old-is-new state secrets policy. Altogether they got an extra 22 days to file this filing (which should have been substantially similar to the ones they filed in April). They were almost certainly having still-undisclosed problems with the phone dragnet (probably relating to dissemination of data), as the October 30, 2009 phone dragnet orders is one of the ones the government has withheld even though it is obviously responsive to ACLU and EFF’s FOIA. But the discussions on the Internet dragnet must have been even more contentious, given that the FISC (probably either Reggie Walton or John Bates) refused to reauthorize it. (Note, October 30, 2009 was a Friday, so if FISC formally didn’t approve the Internet dragnet in October 2009, it would have been that day).

And the thing is, from Keith Alexander’s state secrets declaration, submitted perhaps hours and almost certainly no more than a month before the Internet dragnet got shut down because it was illegally collecting metadata that was legally content, it’s not at all clear that the government fully disclosed details they knew about those legal problems with the dragnet. Look closely at ¶¶ 27 and 28, ¶¶48-56, ¶¶58-62 with footnotes.

The phone dragnet description hides the problems with ongoing dissemination problems (which the Administration hid from Congress, as well). It also makes no mention that the phone dragnet had US persons on an alert list without reviewing those selectors for First Amendment review, something that should be central to the suits against NSA (see in particular ¶60). And while there are redacted sentences and footnotes — 13 and 24 — which could include notice that the government was (and had been, since the inception of the FISC-authorized Internet dragnet) collecting metadata that counted as content, those are all very brief descriptions. Moreover, the unredacted descriptions clearly claim that the Internet dragnet program collects no content, which legally it almost certainly did. Moreover, note that the references to the Internet dragnet speak of it in the present tense: “Pursuant to the FISA Pen Register, …. NSA is authorized to collect in bulk.”But there doesn’t seem to be the parallel structure in ¶28 where you’d expect the government to confess that the program was imminently shutting down because it was illegally collecting Internet content.

Note, too, how the declaration refers to the reauthorizations. ¶59 describes the phone dragnet authority “continuing until October 30, 2009” and ¶58 describes the Internet dragnet “requires continued assistance by the providers through [redacted] 2009. They appear not to have known for sure whether the programs would be reauthorized that night! But they appear not to have explained why not.

Perhaps the most pregnant paragraph is ¶62, which in context appears to relate only to the phone dragnet, though I suspect the government would point to to claim their description of violations was not comprehensive:

NSA is committed to working with the FISC on this and other compliance issues to ensure that this vital intelligence tool works appropriately and effectively. For purposes of this litigation, and the privilege assertions now made by the DNI and by the NSA, the intelligence sources and methods described herein remain highly classified and the disclosure that [redacted] would compromise vital NSA sources and methods and result in exceptionally grave harm to national security.

By any measure, Alexander’s declaration falls short of what the government already knew at that time, demonstrably so in the case of the phone dragnet. He hid details — significantly, the watchlist of Americans that violated statute, and almost certainly that the NSA was collecting content in the name of metadata — that were material to the suits at hand.

Which brings me to the memo on authorities. Even as the government was hiding material violations of the statutes they were disclosing to Judge Walker, was it also making expansive Executive Authority claims it couldn’t (and still can’t) share with plaintiffs? Did the government, for example, make an Executive Authority claim that we have every reason to believe John Bates (especially) and Reggie Walton would rebut if they knew about it?

In any case, in addition to the watchlist data from those 3,000 US persons (which would have aged off last month otherwise), the last of the illegal Internet content-as-metadata data might be aged off as soon as April absent these stays.That data might well provide plaintiffs proof they were illegally wiretapped (note, the Internet dragnet was limited to certain switches, but Jewel was built around the Folsom Street switch which was almost certainly included in that). And that the government provided highly misleading descriptions to Vaughn Walker when bidding for a state secrets exemption.

And add in one more legal fight here: as I noted, DOJ is withholding the October 30, 2009 (as well as one later one from 2009) from both the ACLU and EFF (the EFF suit is before a different San Francisco judge). In addition, DOJ is refusing all push for expedited processing on FOIAs for the Internet dragnet filings.

Seeing how clearly manipulative their data release in these lawsuits is, it seems safe to suggest the government is also making FOIA decisions to prevent plaintiffs from obtaining information to really contest these suits. That shouldn’t surprise anyone. But I would hope it would piss off the judges.

NSA’s Newfound Concern about Defendants’ Rights under FISA

As WSJ reported it was going to do, NSA has requested that the FISA Court permit it to retain call data beyond the 5 year age-off date because of all the lawsuits it faces.

[T]he Government requests that Section (3)E of the Court’s Primary Order be amended to authorize the preservation and/or storage of certain call detail records or “telephony metadata” (hereinafter “BR metadata”) beyond five years (60 months) after its initial collection under strict conditions and for the limited purpose of allowing the Government to comply with its preservation obligations, described below, arising as a result of the filing of several civil lawsuits challenging the legality of the National Security Agency (NSA) Section 215 bulk telephony metadata collection program.

It provides this introduction to a list of the suits in question.

The following matters, currently pending either before a United States District Court, or United States Court of Appeals, are among those in which a challenge to the lawfulness of the Section 215 program have been raised:

And lists:

  • ACLU v. Clapper
  • Klayman v. Obama
  • Smith v. Obama, an Idaho case
  • First Unitarian Church of LA, the EFF related case
  • Paul v. Obama
  • Perez v. Clapper, a Bivens suit out of West Texas I hadn’t known about before

It goes on to say,

The duty to preserve typically arises from the common-law duty to avoid spoilation of relevant evidence for use at trial;

[snip]

A party may be exposed to a range of sanctions not only for violating a preservation order,3 but also for failing to produce relevant evidence when ordered to do so because it destroyed information that it had a duty to preserve.

3 To date, no District Court or Court of Appeals has entered a specific preservation order in any of the civil lawsuits referenced in paragraph 4 but a party’s duty to preserve arises apart from any specific court order.

[snip]

When preservation of information is required, the duty to preserve supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information.

[snip]

Based upon the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only that BR metadata specifically relevant to the identified lawsuits.

[snip]

Congress did not intend FISA or the minimization procedures adopted pursuant to section 1801(h) to abrogate the rights afforded to defendants in criminal proceedings.4 For example, in discussing section 1806, Congress stated,

[a]t the outset, the committee recognizes that nothing in these subsections abrogates the rights afforded a criminal defendant under Brady v. Maryland, and the Jencks Act. These legal principles inhere in any such proceeding and are wholly consistent with the procedures detailed here.

[snip]

Although the legislative history discussed above focuses on the use of evidence against a person in criminal proceedings, the Government respectfully submits that the preservation of evidence in civil proceedings is likewise consistent with FISA.

4 By extension, this should also apply to section 1861(g) which, with respect to retention is entirely consistent with section 1801(h).

Now, if you’re not already peeing your pants in laughter, consider the following.

First, as EFF’s Cindy Cohn pointed out to the WSJ, Judge Vaughn Walker issued a retention order in EFF’s 2008 suit against the dragnet.

Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.

In that case, a judge ordered evidence preserved related to claims brought by AT&T customers. What the government is considering now is far broader.

So, at least in her interpretation, it should already be retaining it.

Then, consider DOJ’s very serious citation of Congress’ intention that FISA not impair any defendant’s criminal rights. It basically says that that principle, laid out during debates about traditional FISA in 1978, should apply to other parts of FISA like the phone dragnet.

Of course, it was only 24 hours ago when DOJ was last caught violating that principle in Section 702, abrogating a defendant’s right to know where the evidence against him came from. And there are a whole slew of criminal defendants — most now imprisoned — whose 702 notice DOJ is still sitting on, whose rights DOJ felt perfectly entitled to similarly abrogate (we know this because back in June FBI was bragging about how many of them there were). So I am … surprised to hear DOJ suggest it gives a goddamn about criminal defendants’ rights, because for at least the last 7 years it has been shirking precisely that duty as it pertains to FISA.

Also, did you notice what pending case pertaining to the legality of the phone dragnet DOJ didn’t mention? Basaaly Moalin’s appeal of his conviction based off evidence collected pursuant to Section 215. What do you want to bet that NSA hasn’t retained the original phone records that busted him, which would have aged off NSA’s servers back in October 2012, well before DOJ told Moalin it had used Section 215 to nab him. That’s relevant because, according to recent reporting, NSA should not have been able to find Moalin’s call records given claims about limits on collection; if they did, they probably only did because AT&T was turning over other providers phone records. Moreover, we know that NSA was in violation of the dragnet minimization requirements in a slew of different ways at the time. Notably, that includes queries using selectors that had not been RAS-approved, as required, and dissemination using EO 12333’s weaker dissemination rules. Now that we know of these problems, a court might need that original data to determine whether the search that netted Moalin was proper (I presume NSA has the original query results and finished intelligence reports on it, but it’s not clear that would explain precisely how NSA obtained that data). Significantly, it was not until after 2009 that NSA even marked incoming data to show where it had been obtained.

So show us (or rather, Moalin’s lawyers) the data, NSA.

Ah well. If nothing else, this laughable motion should prove useful for defendants challenging their conviction because DOJ abrogated their rights!