(CN) – The NSA claims it has complied with a court order to preserve evidence in a challenge to its secret surveillance program – under its own reading of plaintiffs’ claims, which the plaintiffs dispute.
The government told the Foreign Intelligence Surveillance Court (FISC) in March that it did not believe the evidence preservation order in Jewel v. NSA, a challenge to the security agency’s telephone surveillance of U.S. citizens, applied to its current telephony metadata collection practices.
It claimed that the seven-year-old Jewel litigation extended only to surveillance authorized by President George W. Bush without FISC oversight. That program is said to have ended in 2007.
Plaintiffs were appalled by this reading of the complaint, and at an emergency hearing, U.S. District Judge Jeffrey White agreed to extend a temporary retraining order, forbidding the NSA from destroying metadata until the dispute is resolved.
This misunderstanding also led to a conflicting order from the FISC, prompting a government apology .
The government filed its brief regarding compliance with the preservation orders on Friday, opening with a defiant tone.
“While there have been many disputes in the course of this long-running litigation, until recently there has been no dispute about what the plaintiffs are complaining about – the legality of certain alleged intelligence-gathering activities authorized by President Bush after the September 11, 2001 terrorist attacks,” the brief begins.
But since disclosures by former NSA contractor Edward Snowden revealed the extent of NSA surveillance, the Jewel plaintiffs have shifted gears, the government claims.
“Plaintiffs now seek to recast their complaints to take advantage of these official disclosures and contend that the government failed to preserve relevant evidence. Plaintiffs have not, however, sought to amend their complaints but instead make the argument that the complaints should be read to encompass the FISC-authorized activities. Such a reading is directly contrary to the actual allegations in the complaints and stretches them beyond recognition,” the 34-page brief states.
The NSA claims it has “fully complied with its preservation obligations by preserving information that may be relevant to plaintiff’s actual claims” – as the government understands them, limited to NSA activities under President Bush between September 11, 2001, and 2007.
The brief claims that the preservation order “did not require the government to preserve information related to the newly FISC-authorized intelligence-gathering activities, for the fundamental reason that the plaintiffs’ complaints in those cases did not challenge FISC-authorized activity, under any reasonable reading.”
Assistant Attorney General Stuart Delery filed the brief.
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