Reggie Walton, the presiding judge of the Foreign Intelligence Surveillance Court, changed course Wednesday and ordered the National Security Agency to retain its vast cache of U.S. phone records longer than five years.
In doing so, Walton rescinded a ruling he issued days earlier denying a Department of Justice request to do just that.
Walton on Friday swatted at government attorneys’ apparent fear that deleting records older than five years could result in sanctions for destroying evidence and denied their request for indefinite retention of records pending the outcome of court challenges.
“On the current record, such an outcome appears far-fetched, as the plaintiffs appear not to have made any attempt to have the … metadata retained,” he ruled.
In a motion to correct the record, attorney Kurt Opsahl of the Electronic Frontier Foundation – which filed lawsuits in 2008 and 2013 against the NSA's phone record collection – said Walton was woefully misinformed.
The 2008 case, the EFF said in a Saturday filing to the FISC, remains pending and has a preservation of evidence order. The organization blamed government attorneys, not Walton, for the oversight.
“On February 26, 2014, movants contacted the Government and called to its attention its failure to inform this Court of the existing preservation orders. To movants’ knowledge, the Government did not attempt to correct the record before this court,” Opsahl wrote.
U.S. District Court Judge Jeffrey White of San Francisco stepped in Monday, ordering a temporary restraining order barring the NSA from destroying records older than five years, pending a March 19 hearing on whether or not they may be destroyed.
In his Wednesday order, Walton said the "intervening developments fundamentally alter premises” on which the Friday FISC order was based. “It is now apparent that some civil plaintiffs actively seek to preserve the BR metadata," he said.
The conflicting court orders, Walton wrote, “put the government in an untenable position and are likely to lead to uncertainty and confusion among all concerned about the status of BR metadata.”
Thus, he ordered the data be stored for longer than five years, but in a form inaccessible to NSA intelligence analysts.
“We expect to prevail [March 19],” Opsahl tells U.S. News. “The government has no right to destroy evidence of its illegal activities.”
“To be clear, the destruction of these documents is part of the ultimate relief the plaintiffs seek,” he says. “But they also seek an accounting – so that people may know how their rights were violated. Such an accounting, which can provide some closure to citizens spied upon, would be impossible if the government destroys evidence.”
In addition to the EFF, the American Civil Liberties Union, conservative legal activist Larry Klayman and Sen. Rand Paul, R-Ky., filed lawsuits against the phone program after the Guardian published in June 2013 a leaked FISC order authorizing the bulk collection.
"Holding up the slow destruction of millions of Americans' private information when that is the very relief sought, just doesn't make sense," former Virginia Attorney General Ken Cuccinelli, the lead attorney on Paul’s case, tells U.S. News in an emailed statement.
"I understand that Judge Walton is simply responding to one of the judges handling one of the cases against the NSA in California. I hope that when that court hears arguments on extending or not extending the five year holding period, they will recognize that a critical element of the relief we are all seeking is to destroy these private records," Cuccinelli says.
In his now-reversed order, Walton gave a perhaps unexpected smack to the government. “Extending the period of retention for these voluminous records increases the risk that information about United States persons may be improperly used or disseminated,” Walton wrote, and “would further infringe on the privacy interests of Unites States persons whose telephone records were acquired in vast numbers and retained by the government.”
Klayman, however, tells U.S. News he believes Walton is in cahoots with the NSA and that his initial denial of the government’s request was a charade.
“Walton is very much a pro-government-type judge,” Klayman says. “I think they’re working together – I think the NSA and the judge are working together and the NSA got what it wanted, to keep those metadata records, and the pretext was not to destroy evidence. … It’s a highly dangerous situation to leave those documents in the hands of the NSA.”
Attorneys for the ACLU could not immediately be reached for comment.
Klayman won a preliminary ruling against the program Dec. 16 from U.S. District Court Judge Richard Leon, who found the “almost Orwellian” program “almost certainly” violates the Fourth Amendment. The ACLU is appealing the Dec. 27 dismissal of its lawsuit by a different judge.
Read: Walton's Wednesday Order:
Updated on March 13, 2014: This article has been updated to add comments from Kurt Opsahl and Larry Klayman.