Feds Get More Time to Review Classified Filings

(CN) - The U.S. government has two more weeks to finish reviewing the classification of certain documents filed in a challenge to its telephone surveillance program, a federal judge ruled Tuesday.

In so ruling, U.S. District Judge Jeffrey White appended a short paragraph to the stipulation filed a day earlier by Justice Department attorney James Gilligan.

"The government has not - despite significant efforts - been able to comply with the court's order to complete its classification review of these ten declarations by April 21, 2014," Gilligan had said. "Significant information in the declarations remains highly classified, which must be separated from any information that no longer remains classified. Each declaration must undergo several layers of careful line-by-line review before public versions can be produced. These reviews also require inter-agency consultation and coordination, which takes additional time and resources from various governmental components that have a limited number of individuals who have the experience and clearances necessary to perform these reviews. These individuals must conduct these reviews in addition to other classification-review tasks such as complying with Freedom of Information Act (FOIA) requests and court-ordered deadlines in related FOIA litigation. For these reasons, the government respectfully requests, and plaintiffs do not oppose, a two-week extension until May 5, 2014, for the government to complete its classification-review, processing, and (as appropriate) public filing of the ten declarations that the government has identified as subject to the court's March 19 order."

Uncle Sam will also have until May 5 to file its certification regarding preservation of evidence.

Any telephone metadata that the government has collected likely falls under the preservation orders it faces in Jewel v. NSA and First Unitarian Church v. NSA, two civil challenges over which White is presiding in San Francisco.

In that vein, the Foreign Intelligence Surveillance Court has removed a restriction that would have the government destroy more-than-5-year-old metadata records in the interest of privacy.

Jewel's class action challenges the National Security Administration's Terrorist Surveillance Program as an abuse of executive privilege that monitors law-abiding customers.

The class claims that the NSA's implementation of the Terrorist Surveillance Program, signed into law after the Sept. 11, 2011, terrorist attacks, violates the Constitution and the Foreign Intelligence Surveillance Act (FISA). It is represented by the Electronic Frontier Foundation, a digital privacy rights organization.

Jewel's case had been slogging along for years when in June 2013 former NSA contractor Edward Snowden leaked documents revealing that the NSA had forced Verizon to hand over "all call detail records or 'telephony metadata'" of U.S. customers placing international domestic and local calls."

Snowden's revelations led White to bar the government from trying to keep a lid on surveillance information via the state secrets defense. The judge had said that the FISA procedural mechanism prescribed under 50 U.S.C. § 1806(f) pre-empts such privilege.

Citing Clapper, White then requested briefing as to whether litigating claims for untargeted surveillance would reveal whose "name was on the list of surveillance targets."

Jewel's attorneys recently slammed the government for using this question "to assert that the state secrets privilege should govern proceedings in this litigation."

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