DOJ Argues Secret Ruling Over Secret Unconstitutional Surveillance Must Remain Secret Because It's Secret

from the and,-you-know,-it's-secret dept

About a year ago, after a lot of pressure from Senator Ron Wyden, the government finally admitted (late on a Friday) that, yes, indeed some of its surveillance efforts had been found unconstitutional for violating the 4th Amendment. But they didn’t explain what, nor did they reveal the FISA court ruling which made that assessment. Since that time, the EFF has been fighting the government to get it to reveal the ruling. The DOJ refused to release it following a Freedom of Information Act (FOIA) request, and later said that even if it wanted to, it can’t release the document, because only the FISA Court (FISC) could release it. But, in an earlier ruling in a different case filed by the ACLU seeking to reveal a FISC ruling, FISC had said that FISC couldn’t reveal it, and the ACLU needed to seek the document from the DOJ. In other words, both the DOJ and FISC are pointing fingers at each other, saying that only the other one can reveal the document. In response, the EFF has asked for confirmation from FISC that if a district court rules against the DOJ and tells it to release the document, that FISC will actually do so.

Now, the DOJ is fighting back with the most circular and ridiculous logic imaginable:

In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.

The government’s argument is guaranteed to make heads spin. DOJ earlier argued that it lacks discretion to release the FISC opinion without the FISC’s consent, but DOJ now argues that if the FISC were to agree with EFF, “the consequence would be that the Government could release the opinion or any portion of it in its discretion.” But FISC material is classified solely because the Executive Branch demands that it be, so release of the opinion has always been a matter of Executive discretion.

Frankly, it’s difficult to understand what DOJ is saying. The Government seems to have a knee-jerk inclination towards secrecy, one that often – as in this case – simply defies logic. The government’s bottom line is this: their rules trump the public’s statutory rights. But it’s not the province of the Executive branch to determine which rights citizens get to assert.

Basically, the finger pointing continues. However, considering the increasing concern about vast government surveillance, it certainly seems like the government should start looking into being a hell of a lot more transparent, and it could start by giving up this game and releasing that FISC ruling.

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Comments on “DOJ Argues Secret Ruling Over Secret Unconstitutional Surveillance Must Remain Secret Because It's Secret”

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51 Comments
Anonymous Coward says:

Re: Re:

You hate TD so much you’ll even troll an important topic like the government running amok? The rights of the people are not trivial and reining in governmental organizations that abuse the public’s rights is an important topic.

However, as you want nothing better than to troll TD without contributing to the conversation, you must be a sad and frustrated little man.

Rapnel (profile) says:

Re: Re: Re:3 Re:

Fuck that, we’re not politicians. ‘Guy’s a creatin and uses a public forum where an email conversation with the target of his affections would suffice to further his interest of having a discussion. He doesn’t want to communicate with us but chooses to dish dirt and dodge all topics, great and small. So yeah, he’s a pussy and deserves to know in order to consider remedial action.

That One Guy (profile) says:

Re: Re: Re:4 Re:

And if he was at all interested in what other people said or thought, either of him or in general, you might have a point, but people like AJ simply do not care to engage in meaningful discussions, but merely wish to cause as much anger and frustration as they can, hence the ‘sinking to their level’ bit is nothing more than giving them exactly what they want.

Anonymous Coward says:

Re: Re: Re:2 Re:

LOL! Wanting Mike to discuss whether he thinks copyright infringement is immoral or not doesn’t make me a toddler. The fact that he refuses to discuss it, despite having thrust himself to the forefront of the copyright debate, only makes him look bad. Why’s he so scared to state a simple opinion on so basic an issue? Hmm… It’s almost like he’s a scared little child who can’t be honest. Weird.

Anonymous Coward says:

Re: Re: Re:2 Re:

Ask yourself this: Why won’t Mike answer a simple question such as whether he personally thinks copyright infringement is moral or not? It doesn’t matter who asks the question. He won’t answer it. What’s he so ashamed of? Why does he dodge that question every time no matter who asks it? Hmm… Almost like he’s too scared to be honest. Weird. Not Mike. He’s such a great guy. So honest and forthcoming. Not.

Anonymous Coward says:

Re: Re: Re: Re:

Given what the government is doing, I’m not do happy with them either. I am glad someone is bringing up the topic and spurring on discussion. This is not a trivial topic and has the ability to affect how the government behaves in the future.

Feel free to roam off topic and use it and any other topic as an excuse to bash TD, it only makes you look shortsighted and stupid. I take it you are not concerned with an overreaching government?

Anonymous Coward says:

Re: Re: Re: Re:

There’s a big difference between hating abuse of power and hating the government. Just like there’s a big difference between hating abuse of copyright and hating copyright. That you appear unable to tell the difference between either situation says a lot about you… and none of it good.

Anonymous Coward says:

Re: Re: Re:3 Re:

Please point out exactly where Mike hate either of those. You’re the one stating that he hates both, whereas anyone with a logical mind at all can read what is posted to see what he dislikes about both without condemning either. He’s advocated for shorter copyright terms, not abolishing it. He’s called for fixes to the DMCA, not scrapping it. So tell us, how does he hate copyright? We already know that you can’t tell the difference between hating a facet of a thing and hating the thing altogether.

Anonymous Coward says:

You’ve been found guilty by a court.
– Interesting, which court?
Sorry, that’s secret. But we have evidence…
– Show me, so I can defend myself!
Sorry, secret too.
– By which method did you get this stuff?
Again, sorry, that’s secret.
– And now about your punishment…
Is that a drone I hear outside…?
– Yup, that’s secret too. But soon it won’t matter for you anymore…

out_of_the_blue says:

Mike, apply your Google standard: "no evidence of real harm",

and then you circularly have no reason to want to know!

Mike can’t be consistent that surveillance is universally bad because he’s pro-Google. He can only keep avoiding the obvious similarities — and that’s QUITE difficult after explicit “leaks” that NSA has direct access into Google.

But on the up side, we’ve gone how many hours now without a Prenda law item?

Rapnel (profile) says:

Re: Mike, apply your Google standard: "no evidence of real harm",

Yes, that’s right, because google makes law, collects taxes, disseminates your taxes, determines constitutionality, wages wars, fosters secret courts, feeds the hungry and mines the totality of global data in order to protect your children. Oh and with the added bonus of finding shit you’re looking for and selling ads.

That’s just fantastic, Blue and I’m so very glad you’re with us. Your total comprehension skills are world class.

Michael (profile) says:

Re: Even Chinese Citizens want more info

As it happens to turn out, the ORIGINAL Edward Snowden is looking for a new country as we speak! This is a fine opportunity for those of you in repressed nations around the world to get your hands on your very own Edward Snowden!

We can put him on eBay! Well, I guess we can put him on eBay.uk or something. A US company may lose it’s funding sources and credit card processing providers if they get involved.

RubyPanther says:

This is a pretty dumb story. First of all, the Courts have to tell us if it is Constitutional or not. Don’t forget all the parts of the Constitution that lay out the different powers. And Courts can of course order things sealed. And so once we let Congress pass a law that creates a secret Court, yes, we then lose oversight. It sucks, but there is nothing un-Constitutional about it. And if there is a ruling that is Classified, and the secret Court also seals it, then they might be right; declassifying the ruling might very well defy the order.

There is lots and lots of room to dislike these things and complain about them without being shrill and wrong.

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