Unsealed Yahoo/FISA Documents Show NSA Expected Company, FISC Judge To Operate On Zero Information

Legal Issues

from the shame-this-whole-system-of-checks-and-balances-can't-just-be-eradicated dept

Late last week, the Office of the Director of National Intelligence released a stack of documents from Yahoo’s challenge of the NSA’s internet dragnet. The new declassified and unsealed documents have been dumped into one, 309-page PDF along with everything the ODNI has already released — one of the small things the office routinely does to slow the dissemination of previously-unseen information.

Marcy Wheeler, being the hero she is, has waded into the bloated PDF and recovered more damning statements from FISA judge Reggie Walton — one of few presiding judges to seriously challenge the NSA’s methods and techniques.

What she’s uncovered is more evidence the agency considers itself accountable to no one. Not only was Yahoo expected to be litigating blindly — what with the government’s multiple ex parte submissions and its general refusal to discuss any specifics of its PRISM program — but apparently the FISA court was expected to adjudicate blindly. The NSA’s refusal to provide Reggie Walton with the information he needed to render decisions resulted in this irritated order.

The Court is issuing this ex parte order to the Government requiring it to provide clarification concerning the impact on this case of various government filings that have been made to the FISC under separate docket.

[snip]

lt is HEREBY ORDERED that the government shall file a brief no later than February 20. 2008, addressing the following questions:

1. Whether the classified appendix that was provided to the Court in December 2007 constitutes the complete and up-to-date set of certifications and supporting documents (to include affidavits, procedures concerning the location of targets, and minimization procedures) that are applicable to the directives at issue in this proceeding. If the answer to this question is .. yes,’” the government’s brief may be filed ex parte. If the government chooses to serve Yahoo with a copy of the brief, it shall serve a copy of this Order upon Yahoo as well.

2. If the answer to question number one is “no,” the Government shall state what additional documents it believes are currently in effect and applicable to the directives to Yahoo that are at issue in this proceeding. The government shall file copies of any such documents with the Court concurrent with filing its brief. The government shall serve copies of this Order, its brief, and any additional documents upon Yahoo, unless the government moves this Court for leave to file its submission ex parte, either in whole or in part. If the government files such a motion with the Court, it shall serve a copy of its motion upon Yahoo. The government shall also serve a copy of this Order upon Yahoo, unless the government establishes good cause for not doing so within the submission it seeks to file ex parte.

The government’s testy response was to point out it has never been obligated to provide anyone but the court with documents pertaining to its surveillance efforts..

Under the Protect America Act, then, the government has an unqualified right to have the Court review a classified submission ex parte and in camera which, of course, includes the unqualified right to keep that submission from being disclosed to any party in an adversarial proceeding before this Court.

As Wheeler points out, the documents Judge Walton ordered the government to turn over to the court did not arrive in full until after Walton had made it clear he wouldn’t force the government to hand these over to Yahoo as well.

The holdout document — the one that didn’t appear until the government was sure it wouldn’t have to provide Yahoo with this info — is key. It shows the government’s procedures for handling metadata had been misleadingly portrayed, not just to Yahoo, but possibly to the court as well.

Now, to be fair, in the original release, it was not clear that the government offered this much explanation for SPCMA [Special Procedures Concerning Metadata Analysis], making it clear that the procedural change involved making American metadata visible. But the government very clearly suggested — falsely — that SPCMA had no Fourth Amendment implications because they didn’t make Americans overseas more likely to be targeted (which the government already knew was the key thrust of Yahoo’s challenge).

The opposite is true: by making US person metadata visible, it ensured the government would be more likely to focus on communications of those with whom Americans were communicating. These procedures — which were approved more than two months, one document dump, and one court order agreeing to keep everything secret from Yahoo earlier — were and remain the key to the Fourth Amendment exposure for Americans, as was argued just last year. And they weren’t given to even the judge in this case until he asked nicely a few times.

The NSA has very little in the way of effective oversight. It has even less opposition in terms of checks and balances even when facing a judge clearly exhausted by the agency’s obfuscation and abuse. An effective challenge of NSA surveillance in court — even a regular one — is an uphill battle. In the FISA court, where it’s allowed an “unqualified right” to present all its assertions and evidence without facing anything more adversarial than a FISC judge, it’s completely impossible. Yahoo fought with pretty much every appendage tied behind its back. An unsuccessful challenge was a foregone conclusion. But, if nothing else, its long tangle with the NSA dragged some of its so-called secrets out of the shadows. That’s not a win but it’s far better than the alternative — where the government’s foremost intelligence agency is allowed to rewrite the rules as it goes along with the administration’s implicit support — and keep the public from ever finding out just how much domestic surveillance slack it’s managed to cut for itself.

Filed Under: 4th amendment, doj, fisa court, fisc, mass surveillance, nsa, odni, oversight, reggie walton, surveillance
Companies: yahoo