DOJ Admits It's Still Destroying Evidence In NSA Case; Judge Orders Them (Again) To Stop; DOJ Flips Out
from the hey you guys dept
So, remember how we wrote about the big EFF filing in the Jewel v. NSA case, about how the NSA and DOJ had been knowingly destroying key evidence by pretending that they thought the preservation orders only applied to one kind of spying, and not the kind that was approved by the FISA Court (despite at other times admitting that the surveillance at issue in the case was approved by the FISA Court)? Yeah, so, yesterday, the EFF realized that despite the big kerfuffle this whole thing had caused, the NSA and DOJ were still destroying that evidence, and sprinted over to the court to file for an emergency temporary restraining order on the government.
In its TRO, the Court ordered the government to refrain from any further destruction of
evidence pending final resolution of the parties’ dispute over the government’s evidence
preservation obligations: “Accordingly, it is HEREBY ORDERED that Defendants, their officers,
agents, servants, employees, and attorneys, and all those in active concert or participation with
them are prohibited, enjoined, and restrained from destroying any potential evidence relevant to the
claims at issue in this action, including but not limited to prohibiting the destruction of any
telephone metadata or ‘call detail’ records, pending further order of the Court.” ECF No. 189 at 2
(emphasis added). In its Amended Minute Order, the Court reiterated that the TRO’s prohibition
on any evidence destruction remains in effect until the Court has finally decided the evidence
preservation dispute: “The Court extends the temporary restraining order issued on March 10,
2014 until a final order resolving the matter is issued.” ECF No. 206 at 1.
In communications with the government this week, plaintiffs learned to their surprise that
the government is continuing to destroy evidence relating to the mass interception of Internet
communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act.
This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the
content of Internet communications from the Internet “backbone” network of AT&T, as described
in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus….
Ridiculously, the DOJ claimed that it did not believe the original TRO covered internet content interceptions, and thus was still destroying such evidence. It just said it believed the court was still determining if the TRO applied to such evidence. It took very little time for the court to respond, telling the DOJ to file an immediate response and in the meantime to stop destroying the freaking evidence.
On June 5, 2014, the Court received an emergency filing from Plaintiffs in which they
contend that the government may be in violation of the Court’s restraining order. Defendants
shall file a response to Plaintiffs’ emergency filing by no later than 12:00 noon PST on Friday,
June 6, 2014. At that time, the Court shall decide whether and when to have a hearing on this
matter. In the interim, the restraining order remains in effect: Defendants are ordered not to
destroy any documents that may be relevant to the claims at issue in this action, including the
Section 702 materials
This is pretty damn egregious. There is simply no way that the DOJ could properly read the original TRO to mean that it can continue to destroy this evidence. To pretend that’s a possible reading, especially given all the clear notifications of both EFF’s and the court’s concerns, is clearly the DOJ and NSA just playing dumb for the sake of being able to destroy more evidence.
And while the DOJ had until today to file its response, late yesterday it filed a very short response, demanding the judge issue an emergency stay on the TRO it had just issued, saying that complying with it would “cause severe operational consequences.”
Undersigned counsel have been advised by the National Security Agency that compliance
with the June 5, 2014 Order would cause severe operational consequences for the National
Security Agency (NSA’s) national security mission, including the possible suspension of the
Section 702 program and potential loss of access to lawfully collected signals intelligence
information on foreign intelligence targets that is vital to NSA’s foreign intelligence mission.
It also promises to file a more complete response today, which we’ll try to add here once it’s out. This response seems bizarre. It’s unclear why an order to not destroy evidence would mean that the Section 702 program would need to be suspended entirely. Either way, EFF lawyers had to stay up late last night, rushing out their own reply to the DOJ’s frantic freakout.
It is not credible that, as the government contends, simply refusing to destroy during the
next 18 hours the communications it has intercepted will cause “the possible suspension of the
Section 702 program.”… How can the preservation of these intercepted
communications cause a “loss of access to lawfully collected signals intelligence information”? …
That information will remain accessible even though it is being preserved.
More fundamentally, the unspoken but unmistakable foundation of the government’s
position is a contention that it never understood before this afternoon that the Court’s TRO
required it to preserve evidence relating to its interception of Internet communications. This, too,
lacks any credibility, especially in light of the extensive discussions between Court and counsel at
the March 19, 2014 hearing on the evidence preservation dispute. The government’s disregard for
the past three months of its obligations under the Court’s TRO should not be retroactively blessed
by granting a stay that permits the government to continue destroying evidence.
I imagine there will be more very soon.