For technical reasons this post has moved here.
I have been following the government’s claims that it needs to
make the phone dragnet plaintiffs look bad preserve evidence in the phone dragnet cases. I noted:
- NSA’s claim, on February 20, that it might need to preserve the phone dragnet information
- EFF Legal Director Cindy Cohn’s observation that NSA already should have been preserving phone dragnet data because of earlier orders in EFF cases
- NSA’s own claim, in 2009, that it was under a preservation order that might prevent it from destroying illegal alert information
- NSA’s own quickness to destroy 3,000 violative files in 2012 when caught retaining data in ways it shouldn’t have been
- NSA’s rather bizarre claim — given their abysmal track record on this point — that a great concern about defendants’ rights meant they had to keep the data
- The likelihood that, that claim of concern about defendants’ rights notwithstanding, NSA had probably already destroyed highly relevant data pertaining to Basaaly Moalin
- FISC’s equally bizarre — given their own destruction of any normal meaning of the word, “relevant” — order to force the government to continue destroying the dragnet data
That last bit — FISC’s order that the government go on destroying data in spite of existing protection orders to retain it — happened Friday.
Since Friday, the EFF has been busy.
First, it filed a motion for a Temporary Restraining Order to retain the records, pointing out that there have been two preservation order in effect for at least 5 years that should govern the phone dragnet.
There has been litigation challenging the lawfulness of the government’s telephone metadata collection activity, Internet metadata collection activity, and upstream collection activity pending in the Northern District of California continuously since 2006. The government has been under evidence preservation orders in those lawsuits continuously since 2007.
The first-filed case was Hepting v. AT&T, No. 06-cv-0672 (N.D. Cal). It became the lead case in the MDL proceeding in this district, In Re: National Security Agency Telecommunications Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal). On November 6, 2007, this Court entered an evidence preservation order in the MDL proceeding. ECF No. 393 in MDL No. 06-cv- 1791-VRW. One of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv- 0603-JSW (N.D. Cal.), remains in litigation today before this Court, and the MDL preservation order remains in effect today as to that case.
In 2008, movants filed this action—Jewel v. NSA—and this Court related it to the Hepting action. This Court entered an evidence preservation order in Jewel. ECF No. 51. The Jewel evidence preservation order remains in effect as of today.
EFF also filed a similar motion with the FISA Court.
And it provided all the emailed reminders it sent the government, starting on February 26 after the government filed a motion with FISC to destroy the data, that it was already under a preservation order. On February 28, DOJ asked EFF to hold off until roughly March 5. But DOJ did nothing at that time, and EFF followed up again on March 7, after the order, asking how it was that the FISC didn’t know that existing preservation orders covered the phone dragnet. In response, DOJ’s Marcia (Marcy) Berman got dragged back into the case to give this convincing response.
[T]he Government’s motion fo the FISC, and the FISC’s decision today [March 7], addressed the recent litigation challenging the FISC-authorized telephony metadata collection under Section 215-litigation as to which there are no preservation orders. As we indicated last week, the Government’s motion did not address the pending Jewel (and Shubert) litigation because the district court had previously entered preservation orders applicable to those cases. As we also indicated, since the entry of those orders the Government has complied with our preservation obligations in those cases. At the time the preservation issue was first litigated in the MDL proceedings in 2007, the Government submitted a classified ex parte, in camera declaration addressing in detail the steps taken to meet our preservation obligations. Because the activities undertaken in connection with the President’s Surveillance Program (PSP) were not declassified until December 2013, we were not able to consult with you previously about the specific preservation steps that have been taken with respect to the Jewel litigation. However, the Government described for the district court in 2007 how it was meeting its preservation obligations, including with respect to the information concerning the PSP activities declassified last December. We have been working with our clients to prepare an unclassified summary of the preservation steps described to the court in 2007 so that we can address your questions in an orderly fashion with Judge White, if you continue to believe that is necessary.
After San Francisco Judge Jeffrey White ordered the government to explain itself, the government changed the timeline, suppressing the fact that they told EFF to hold off on making any filings. It also said it would just have to keep destroying data.
Therefore, in light of the FISC’s March 7 order, the Government currently remains subject to orders of the FISC—the Article II Court established by Congress with authority to issue orders pursuant to FISA and to impose specific minimization requirements—which orders require the destruction of call-details records collected by the NSA pursuant to Section 215 that are more than five years old.
In light of the obligations created by those orders, on March 7, 2014, upon receipt of the FISC’s decision, the Government filed a notice in First Unitarian and other cases challenging the legality of the Section 215 telephony metadata program of the Government’s intention, as of the morning of Tuesday, March 11, 2014, to comply with applicable FISC orders requiring the destruction of call-detail records at this time, absent a court order to the contrary.
Judge White was not impressed — he issued an order requiring the government to retain the data.
There are two things, even at first glance, that don’t make sense about all this.
First, there’s still one case that hasn’t been officially mentioned in any court discussion of retaining data I know of: Basaaly Moalin’s challenge to his dragnet identification, based off 2007 data that has probably already been destroyed but which almost certainly would reflect the many violations characteristic of the program at the time.
Then there’s the likelihood that one or both of the EFF cases was the case mentioned on February 17, 2009 — just over the 5 year age-off period at this point — regarding age-off requirements. If it was relevant then, why isn’t it now? Note, Reggie Walton is still presiding over the same decisions, so if that earlier case were an EFF one, Walton should know about it.
I would normally think this charade was just two sides lobbying for good press. Except that the phone dragnet data from just over 5 years ago — the stuff that would age off if the government followed FISC’s order — would show a great deal of violations, almost certainly constitutionally so.
So who is the entity in such a rush to destroy that data? DOJ? Or the FISC?
The 9th Circuit wrote a really fascinating opinion in the EFF FOIA. The Circuit was dealing with three questions regarding EFF’s FOIA of the documents pertaining to telecom lobbying leading up to the passage of PAA and FAA. Those three questions are:
- Whether FOIA Exemption 3 (protection of sources and methods) applies
- Whether FOIA Exemption 6 (privacy) applies to contractors who lobby
- Whether FOIA Exemption 5 (intra- and inter-agency communications) applies
While there’s a lot of nuance in this decision (and it’ll take a review of the actual Vaughn Indices to see what will definitely get released), the most exciting part of this ruling is the Circuit Court’s ruling that the government can’t protect the identities of the telecoms that lobbied for a Get Out of Jail Free Card, just because they needed one.
FOIA Exemption 3: Remand because EFF Was Confused
As to the question of whether the names of the telecoms should be protected as sources and methods and/or as a functional part of NSA, the Circuit didn’t decide. Rather, it argued there was confusion regarding whether or not EFF had ceded this issue, and as a result, District Court Judge White had not addressed the issue of whether this should be protected.
Under these statutes and Exemption 3, the government’s summary judgment brief argued, “ODNI and DOJ withheld information that could reveal whether any particular telecommunications carrier has assisted, or may in the future assist, the government with intelligence activities.” The government claimed disclosure “could deter telecommunications companies from assisting the government in the future,” and disclosure “provides our adversaries with valuable information about our intelligence sources, methods, and capabilities.”
 The government’s argument was predicated on the following inference: Revealing the identity of carriers and their agents working for a carrier liability shield would allow foreign intelligence agents to determine contours of NSA intelligence operations, sources, and methods. In other words, knowledge of which firms were and were not lobbying for liability protection could lead to inferences regarding the firms that participate in the surveillance program. EFF disputes the propriety of this inference. However, because the district court did not address Exemption 3 due to confusion in the parties’ summary judgment briefing, we remand for the district court to address these claims in the first instance.
This decision says nothing about whether White will rule in EFF’s favor or not. But heck, I’ll take that second bite at this apple.
FOIA Exemption 6: The Public has a Compelling Interest
This decision is, by far, the most interesting part of the opinion to me. Mind you, the Circuit was not determining whether or not contractors’ identities could be protected. Rather, it was determining whether lobbyists’ identities could be protected, even if it would be easy to assume those lobbyists were in fact contractors.
And the Circuit Court said that, whatever privacy protection the lobbyist-contractors might have, the public’s interest in knowing who was lobbying for legislation was more important.
We next consider “whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy.” Wash. Post Co., 456 U.S. at 602. “[T]o determine whether a record is properly withheld, we must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure.” Lahr, 569 F.3d at 973.
The district court concluded “that there is some, although not a substantial, privacy interest in the withheld documents indicating the identities of the private individuals and entities who communicated with the ODNI and DOJ in connection with the FISA amendments.” It found, however, “that the public interest in an informed citizenry weighs in favor of disclosure” because “there is a strong public interest in disclosure of the identity of the individuals who contacted the government . . . to protect telecommunications companies from legal liability for their role in government surveillance activities.” We agree.
 There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence. As the Supreme Court has explained, “[o]fficial information that sheds light on an agency’s performance of its statutory duties” merits disclosure. Reporters Comm., 489 U.S. at 773.
 With knowledge of the lobbyists’ identities, the public will be able to determine how the Executive Branch used advice from particular individuals and corporations in reaching its own policy decisions. Such information will allow the public to draw inferences comparing the various agents’ influence in relation to each other and compared to the agents’ or their corporate sponsors’ political activity and contributions to either the President or key members of Congress. In short, we find the public interest in “government openness that would be served by disclosure” of how the government makes decisions potentially shielding firms lobbying (and donating to campaigns) from nine-figure liabilities to be plainly important.
As a sop to the government–which was trying to hide all this information–the Circuit Court ruled that the government did not have to make the email addresses for the individuals involved public.
Big whoop. We won’t be able to email the executives who got their Get Out of Jail Free Card. I plan on emailing Ed Whitacre–former CEO of AT&T when they were doing this lobbying and currently CEO of GM–at his new GM email, anyway.
FOIA Exemption 5: The Government Cheated
In general, the Court found that White had too broadly claimed that the documents in question did not qualify for Exemption 5, agreeing that the government had shown that much of this was intra- or inter-agency communication. For those materials, the Court said the government would then have to go back and claim some privilege (such as deliberative privilege) to keep the documents hidden.
But the Court’s more general ruling was that White hadn’t looked closely enough at the Vaughn Index (and that he might have to look at the documents themselves). To justify that point, the Court cites this very amusing example.
Examining the Vaughn indices themselves shows the importance of engaging in the admittedly time-consuming analysis not performed here. Nearly all of the characterizations in the government-offered declarations comport with the descriptions in the Vaughn indices of inter-branch or intrabranch communications. Thus, for these emails, the district court should have more closely examined the documents to determine whether they were in fact inter-agency or intraagency memorandums or letters. Including them in a broad disclosure order was error under any standard.
In addition, in at least two instances (OLC Vaughn Index numbers 46 & 74), the plain language of the declaration seems to imply an intra-Executive Branch email when, in fact, the Vaughn Index makes clear the communications at issue were between the Executive Branch and telecommunications company representatives. This highlights the need for a fact specific inquiry under Exemption 5.
That is, to justify its ruling that Judge White needs to go back and look more closely at the Vaughn index and individual documents, the Court agrees that most of the documents are claimed to be intra- or inter-agency documents. But then points to an example where the government claimed emails between the Executive Branch and telecoms was intra- or inter-agency.
Now, before any of these get released, I think the District Court will need to sort which exemptions were claimed for which documents. But the big takeaway, to me, is that the Circuit Court has ruled that the government can’t keep the identities of lobbyists hidden, even if those lobbyists were lobbying for telecoms that had helped the government break the law.
Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.
Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:
The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.
An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.
But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.
And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.
“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.
In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:
Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,
But the court has already expressed its position on this argument: Read more
Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!
This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.
The EFF describes what transpired next in their press release:
On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.
Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.
Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.
Judge White’s five page Order has some really sweet passages:
There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.
White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.
Then White sets the table for dissection of the DOJ specimen: Read more
The Obama Administration got stuck with a bad court date to have to try to convince a Judge the Jose Padilla suit against John Yoo should be dismissed. After all, we knew Yoo’s memos were legally indefensible. But with the release of nine new OLC memos–including the memo eviscerating the Fourth Amendment, the two withdrawing that one and others, and, significantly, one of the memos pertaining to Padilla specifically ("authorizing" his military detention), the sheer cravenness of Yoo’s legal work is in sharp relief this week.
Nevertheless, they did argue Judge White should dismiss the suit. Though it sounds like he wasn’t impressed with their argument.
The judge, Jeffrey S. White of Federal District Court, explored the arguments of Mr. Padilla’s lawyers thoroughly, but he appeared to be skeptical of elements of the government’s argument.
And he referred to the 4th Amendment Evisceration memo specifically.
In fact, Judge White, who was appointed by President George W. Bush, even told the government’s lawyers that Mr. Yoo’s 2001 memorandum stating that the constitutional protections against unreasonable searches and seizures can be overridden was “a pretty scary position.”
And there’s a further problem with the Administration’s position. They’re arguing that it is not the place for the Courts to take recourse against a government lawyer gone bad–it’s the role of the Executive.
But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said.
Which suggests that the Administration thinks its puny OPR investigation against Yoo is an appropriate response.
The Obama Administration has already signalled that it doesn’t plan real legal consequences for its lawyer for torture. And yet based on that, they want the Courts to butt out.
One more point. It appears that the Administration has not yet turned all the memos used to justfy Padilla’s treatment over (or at least not made them public).
Earlier last week, the Obama administration released nine "war on terror" memos — some written by Yoo, others by 9th U.S. Circuit Court of Appeals Judge Jay Bybee — shortly after White ordered the DOJ to clarify whether it wanted to submit them under seal in the Padilla case. However, the administration didn’t release all of the memos referenced in Padilla’s complaint, Read more