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Wednesday, February 21, 2024
Courthouse News Service
Wednesday, February 21, 2024 | Back issues
Courthouse News Service Courthouse News Service

Government Apologizes|to Surveillance Court

(CN) - Having slighted the Foreign Intelligence Surveillance Court, the U.S. government said it "sincerely regrets" that it kept mum about preservation orders in two challenges to its telephone surveillance program.

Any telephone metadata that the government has collected likely falls under the preservation orders it faces in San Francisco civil challenges, but it had not revealed these obligations while seeking to have the Foreign Intelligence Surveillance Court remove order for it to destroy more-than-5-year-old metadata records in the interest of privacy.

FISC Judge Reggie Walton upheld the destruction obligations on March 7 and then suspended his order days later when U.S. District Judge Jeffrey White issued a conflicting restraining order in the civil matter Jewel v. NSA.

The government's omission now apparent, Walton demanded that the Justice Department explain why it failed to inform him about the preservation orders in Jewel and similar case Shubert v. Obama.

In a seven-page explanation Wednesday, the government claimed it understood the civil claims as pertaining only to the warrantless data collection that took place under President George W. Bush, a practice that ended in 2008, when the FISC began its oversight of government surveillance.

"The government sincerely regrets not apprising the court of these matters before its March 7 ruling and assures the court that it will apply utmost attention and coordination in its submission in this and all other matters before this court," its filing states.

The challengers in Jewel and Shubert meanwhile have been outspoken about fact that they do not consider their cases limited to surveillance by the National Security Agency under President Bush, and Walton noted that "e-mail correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of California."

In its apology, the government said that "the benefit of hindsight" has helped it to recognize "that upon receipt of plaintiffs' counsel's e-mail, it should have made this court aware of those preservation orders and of the plaintiffs' disagreement as to their scope as relevant to the court's consideration of the government's motion and regrets its omission."

Disciplinary action is unnecessary, the Justice Department said, because "the government's paramount objective in its recent filings with this court and the district courts has been to comply with its preservation obligations in civil litigation and to obtain guidance about its obligations regarding the metadata obtained pursuant to orders of this court."

It also chalked up its emailed request that the plaintiffs "forbear from filing anything with the FISC" as a "good faith attempt to avoid unnecessary motions practice."

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