Executive Branch Apologizes to Surveillance Court for Hiding Details of Telephone Spying Program

Thursday, April 10, 2014
Judge Reggie B. Walton (photo: National Bar Association)

The Obama administration has apologized to the government’s secret intelligence court for not informing it of existing orders from another federal court to preserve evidence from the National Security Agency’s (NSA) phone record surveillance program.


The apology was demanded by Judge Reggie Walton, presiding judge of the Foreign Intelligence Surveillance Court (FISC), who had to reverse his March 7 ruling that denied a government request to store phone records longer than five years, a limit previously established by FISC.


Walton issued his decision not knowing that U.S. District Court Judge Jeffrey White in San Francisco had granted a temporary restraining order that prevented the NSA from destroying older records pertinent to two lawsuits filed by the Electronic Frontier Foundation (EFF). Walton only found out about White’s ruling when the EFF informed him of it.


On March 8, EFF attorney Kurt Opsahl wrote in a filing to the FISC that they had contacted the government on February 26 “and called to its attention its failure to inform this Court of the existing preservation orders.” The filing further stated “the Government did not attempt to correct the record before this court.”


This irked Walton, who demanded an explanation from the Department of Justice (DOJ).


“With the benefit of hindsight, the Government recognizes that upon receipt of plaintiffs’ counsel’s e-mail, it should have made this Court aware of those preservation orders,” Assistant Attorneys General John Carlin and Stuart Delery said in a filing submitted to Walton. The Justice officials further said they left out any reference to White’s preservation-of-evidence orders because they believed they were not relevant to the matter before the FISC.


Opsahl told U.S. News & World Report that the apology “illustrates the failures of the FISC’s one-sided court system,” which acts in response to legal requests from the Executive Branch, but will not accept filings from non-government parties.


“As it admits, the government unilaterally decided that it was right about its interpretation of the [pending] case, and therefore did not tell the court about the disagreement,” Opsahl said. “This elevates the DOJ attorneys into a role of a judge, with no accountability except in the rare circumstance like this.”

-Noel Brinkerhoff


To Learn More:

DOJ Apologizes (Twice) to Court in NSA Case (by Steven Nelson, U.S. News & World Report)

Government Apologizes to Surveillance Court (by Jack Bouboushian, Courthouse News Service)

Judge Orders NSA to Preserve Call Data (by Josh Gerstein, Politico)

U.S. Court Filings (Foreign Intelligence Surveillance Court) (pdf)

Declassified Document Confirms Obama Administration Lied about Internet Surveillance Program (by Noel Brinkerhoff, AllGov)


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