FISA Court's Appointed Advocate Not Allowing Government's 'National Security' Assertions To Go Unchallenged

from the government-perturbed-by-amicus-sass-and-backtalk dept

The appointment of a FISA Court amicus to argue on behalf of the American public -- part of the surveillance reforms contained in the USA Freedom Act -- seems to be working out pretty well. FISC judge Michael Mosman appointed Washington DC attorney Preston Burton to examine one issue facing the court: whether the NSA can retain the bulk records it collected under Section 215. According to the new limitations, the NSA must immediately destroy any records that are not "foreign intelligence information." Unsurprisingly, the NSA is reluctant to begin this purge.

There are a certain amount of records the NSA must retain as they are part of ongoing lawsuits against the government. The NSA has stated that it's impossible to separate the phone records relevant to the lawsuits from the rest of the collection.

Burton -- in his response to the government's response to his original amicus brief -- doesn't find the NSA's claim of limited technical capabilities believable. In his first brief, he asked the following question:

Why has the government been unable to reach some stipulation with the plaintiffs to preserve only the evidence necessary for plaintiffs to meet their standing burden? Consider whether it is appropriate for the government to retain billions of irrelevant call detail records involving millions of people based on, what undersigned understands from counsel involved in that litigation, the government's stubborn procedural challenges to standing- a situation that the government has fostered by declining to identify the particular telecommunications provider in question and/or stipulate that the plaintiff is a customer of a relevant provided.

Faced with these pointed questions, the government chose to deploy its favorite dodge.

The government does not answer those questions. Instead the government reinvents the questions as suggesting:

...that the Government disclose national security information concerning the identity of providers, information subject to a pending state secrets assertion, is inappropriate, and the suggestion by amicus that the government stipulate to Article III standing in those cases is unfounded as a matter of law. Finally, the suggestion that preservation of bulk call detail records can be limited solely to the plaintiffs in multiple pending putative class actions is entirely unworkable.

Rather than answer questions about its alleged inability to retain only the records responsive to ongoing litigation, the government opted to raise the "national security" shield in hopes of shutting down this line of inquiry entirely.

Burton is unimpressed:

Amicus 's proposed inquiries were not quite the calamities the government conjures to avoid answering the questions. They were simply inquiries fostered by this Court's own observations that the preservation requirements conflict with minimization procedures designed to protect privacy rights of millions of uninvolved U.S. persons and to appropriately balance those privacy interests with the government's foreign intelligence justification for obtaining the information in the first place.

As Burton points out, the specifics of this program have been the subject of much public discussion, thanks to leaked documents which exposed the reach and breadth of the Section 215 collection. To pretend it's all still a huge secret is ridiculous. And yet, the government insists on doing so. The government's stance -- and its ongoing control of information it believes should be treated as "secret" -- leads to this incredible (in all the wrong ways) bit of redaction in Burton's response brief.


After censoring three sentences regarding "public discussion" of the program, the NSA allows Burton to have the last word on the most technologically-adept intelligence agency in the world claiming it's impossible to separate records it's been ordered to retain from records it's been ordered to destroy.

The government also states, without more, that limiting the records it holds to those belonging to plaintiffs is "entirely unworkable." The 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 whether to continue to burrow in on its standing and procedural challenges.

It's unclear as to how much of an effect the presence of an amicus will have on domestic surveillance programs going forward. It's also unclear as to how much of an input these appointed positions will have going forward. Here, the amicus was limited to addressing the issue of Section 215 bulk record retention/destruction. It's unlikely an amicus will be on hand to challenge government applications for telco record production -- at least not in every case.

But Burton's presence has served an important purpose. For the first time, the government's assertions are being challenged by someone other than a FISA judge. Judging from the tone of the government's response to the first brief, it's not thrilled it has to show its work when it comes to record collection and retention. If nothing else, the presence of an amicus may finally force the government to use something more creative than "national security" when justifying its actions.

Filed Under: amicus, fisa, fisa court, fisc, nsa, preston burton, section 215, surveillance, usa freedom act