DOJ Trying To Hide Secret Interpretations Of The Law Because You'd All DIE!!!!
from the secret-laws dept
It’s kind of sad that anyone could possibly think that it’s <a href=https://www.techdirt.com/articles/20130103/18043521577/theres-secret-reason-why-government-has-to-keep-it-secret-how-many-americans-its-spying-without-warrant.shtml”>okay for the government to have secret interpretations of the law in a free and open society. “The law” is more than just the legislation itself, but the collection of caselaw and interpretations, combined with the legislation, that make up the overall “law.” If some of those interpretations are kept secret, then how can the public obey the law? The answer is that they can’t — which is why secret interpretations shouldn’t be allowed. The Justice Department, however, prefers to keep some things secret, and it’s asking the court to dismiss a lawsuit filed by the EFF seeking to find out how the Foreign Intelligence Surveillance Court is interpreting parts of the FISA Amendments Act, after it was revealed (late on a Friday) that the court found at least one situation in which the feds collected info in violation of the 4th Amendment.
The EFF figured the public should know the details. The DOJ on the other hand… would rather the public stay in the dark. The DOJ actually suggests that merely revealing the fact that they got slapped down by the FISC provides enough “balance.”
Last summer, in an effort to strike the right balance between government transparency and the protection of critical intelligence activities, the government declassified four statements concerning its activities pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) Amendments Act of 2008. Not content with that disclosure, Electronic Frontier Foundation (“EFF” or “Plaintiff”) submitted a Freedom of Information Act (“FOIA”) request seeking additional information related to two of the declassified statements, specifically, that on at least one occasion the Foreign Intelligence Surveillance Court (“FISC”) “held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment” and that “on at least one occasion the FISA Court has reached th[e ] conclusion” that “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law.”
And thus, we should be satisfied with that and want no more. Also, you don’t want to know what kind of hell would break loose if the DOJ had to reveal how the law was actually interpreted. I mean, we’d all die or something very close to it, judging by the DOJ’s language.
The government has determined that disclosure of the information withheld from Plaintiff could result in exceptionally grave and serious damage to the national security. Plaintiff obviously cannot contend otherwise. The Court accordingly should defer to the government’s determination in this case, uphold the Department’s withholdings, and grant this motion.
Basically, we’ve determined that you’re all better off not knowing this information, and you should trust us because it’s not like we have any incentives to lie (though, of course, we do). Also: boo!
Thankfully, more people are realizing just how ridiculous this is. The Washington Post has put out an editorial slamming the DOJ for its position:
Yet, as the amicus brief points out, the OLC’s opinions aren’t some intermediary step toward establishing the final legal interpretations for the executive branch. In general, they are the final legal interpretations for the executive branch. The FBI could choose to exercise the authority that the OLC said it had — or not — but Congress, the judiciary and the public at large all deserve to know what the executive branch thinks it can do, once it issues a conclusive opinion.
In other words, it’s not right that the government can determine its own secret interpretations of the law, and it’s time for the courts to put a stop to this.