DOJ Says Public Has No Right To Know About The Secret Laws The Feds Use To Spy On Us

from the what,-you-want-to-know-that-stuff? dept

So, we were just discussing the insanity of the FISA court (FISC) basically acting as a shadow Supreme Court, making broad rulings in total secrecy that have created a secret body of law that the public is not allowed to know about. Given increasing revelations about these shadow laws, the ACLU and other public interest groups are trying, yet again, to get access to some of these key rulings. All along, they’ve been extremely careful to note that they’re not asking FISC to reveal specific foreign intelligence issues, operations or targets: merely the parts of the rulings that identify what the law is — i.e., how it’s being interpreted by the courts. Because that seems rather fundamental to a functioning democracy.

However, as you might expect, the Justice Department has now hit back with a new filing that says, flat out, the public has no right to know what the secret court is ruling on and how it’s codifying secret laws. The argument is, basically, that because FISC rulings have almost always been secret, then it’s perfectly reasonable that they’re secret. In other words, it’s perfectly legal for secret laws to remain secret, because they’re secret. Later it also argues that actually revealing the law would be (oooooooh, scary!) dangerous.

Let’s make this simple: yes, revealing specific details of various surveillance efforts and targets could create security issues, no doubt. But revealing how a United States’ law is interpreted can never by itself create a national security issue. And that’s all that’s being asked of here. The DOJ is being incredibly dishonest and disingenuous in conflating the two issues, arguing that because the FISC deals with intelligence operations, that its rulings on the interpretation of the law must also be secret. But that’s wrong. You can reveal the basic interpretation of the law without revealing the specific intelligence efforts and methods. The only reason to keep the interpretation of the law a secret is because it’ll be a huge embarrassment and show widespread abuse.

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Comments on “DOJ Says Public Has No Right To Know About The Secret Laws The Feds Use To Spy On Us”

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70 Comments
That Anonymous Coward (profile) says:

Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, equity or fairness, as well as the administration of the law, taking into account the inalienable and inborn rights of all human beings and citizens, the right of all people and individuals to equal protection before the law of their civil rights, without discrimination on the basis of race, gender, sexual orientation, gender identity, national origin, color, ethnicity, religion, disability, age, or other characteristics, and is further regarded as being inclusive of social justice.

https://en.wikipedia.org/wiki/Justice

I guess they are using a secret interpretation of Justice now as well.

Anonymous Coward says:

pants on fire

The ACLU has no standing to bring such a motion because it was not a party to any relevant opinion

LIARS! If anyone at the ACLU has a Verizon Business account, then they are very much a party to a relevant opinion.
I’m pretty sure that there are ACLU members that have been incidentally scooped up or directly targeted in other FISA cases as well.

Anonymous Coward says:

Becuase Roberts says to not share?

Additionally, unlike the operations of any other court, the FISC’s operations are governed “by ISA, by Court rule, and by statutorily mandated security procedures issued by the Chief Justice of the United States [which] [t]ogether . . . represent a comprehensive scheme for the safeguarding and handling of ISC proceedings and records.”

I’d like to see these procedures that the Chief justice has issued.
Does Chief Justice Roberts have a public mailing address? I’d like to petition him to issue more open security procedures.

Anonymous Coward says:

Once the Presiding Judge has decided to direct publication of an opinion, the Court is empowered to “direct the Executive Branch to review the [opinion] and redact it as necessary to ensure that properly classified information is appropriately protected.”

Ah… if it should so be that the court decides to grant the ACLU’s request, the DOJ reserves the right to simply black the entire thing out.

Anonymous Coward says:

No judicial review of Classification

Indeed, as this Court has recognized, “if the FISC were to assume the role of independently making declassification and release decisions. . . there would be a real risk of harm to national security interests and ultimately to the FISA process itself.” … judges do not make classification decisions and are not intended to become national security experts.” … And, while they may have “more expertise in national security matters than a typical district court judge, that expertise [does] not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security.” … Thus, this Court has recognized that classification and declassification decisions are the province of the Executive Branch, and “there is no role for this Court independently to review, and potentially override, Executive Branch classification decisions.”

The DOJ is honestly trying to claim that there is an executive responsibility that doesn’t fall under judicial review?
Almost every court case out there deals with a situation where the court is not as ‘expert’ as the executive. Should the courts no longer be able to rule on suits against the EPA, and other matters?

Ockham's Stubble (profile) says:

Interpretations of law and 'security issues'

Probably said somewhere in someone’s briefs or whatever, but could a plausible reason for conflating the two (the law & the facts) be that, as part of interpreting the law, specific factual details of the cases where the law is being interpreted are cited? So the interpretational element of a FISC decision that defines the scope of the laws is intertwined with facts about a particular case that are claimed to be ‘sensitive’?

(Now, if that’s the case, I think we could at least get a redacted version, or a rewritten one that summarizes the resulting interpretation without the case details it was built from.)

Arthur Treacher says:

Re: Diverted into trying to find out what's secret.

Well, well, well.. for the first time ever, I wish you made sense. I think that “null and void” means something other than what you think it means, like “common law”. And that renders what you’ve written into complete nonsense.

Please try again, because I think you’re on the verge of attaining comprehensibility.

That One Guy (profile) says:

Oh I can think of another reason...

‘The only reason to keep the interpretation of the law a secret is because it’ll be a huge embarrassment and show widespread abuse.

If for example it came out that the ‘interpretation’ made it clear that the US citizenry were considered just as much a ‘threat’ to the government as any potential foreign terrorists, that might cause more than just some ’embarrassment’ there.

Bengie says:

Laws

If people don’t know what the laws are, then they can’t purposefully plan to get “past” a law by a technicality. They can also make up laws as they go, as there is no way to prove that something is a law or not.

Now that people can be arrested and held indefinitely for no reason at all, I see no purpose of having laws in the first place. Why not just say, “don’t piss off the government”?

No matter how good the intentions, power corrupts and absolute power corrupts absolutely.

The road to hell is paved with good intentions, assuming the NSA even has good intentions and isn’t just up for a power grab.

Anonymous Coward says:

surely the most important point is how much has to happen, how much more needs to be taken away before the people wake up and realise that there are certain people taking away the very way of life that exists in the USA and other countries, all to benefit them only and to forward an agenda that only they seem to know and think they are the only ones that should know about but once it is achieved everyone should then just accept it and get on with being told what to do every second of every day. add in that the people are also expected to accept being constantly persecuted, constantly spied on and treated like they deserve nothing other than the bowl of gruel and cup of water each day, whilst doing whatever ‘the masters’ dictate! when a law enforcement agency states that the people shouldn’t know how a law is being interpreted until they are being accuse under that law is not just ridiculous, it has to be in itself illegal! the police state is oh, so close people!

iambinarymind (profile) says:

Their context of "dangerous"

The reason releasing the secret interpretation of the laws to the public would be dangerous is because it would reduce the amount of power that said secret interpretations provide the sociopathic politicians. It’s dangerous for their individual means/ends, not for the people being spied on.

It’s all in the definitions and context.

Uriel-238 (profile) says:

Re: How do you figure?

Essentially by giving our representatives, psychopathic, megalomanic or otherwise just antisocial, unlimited surveillance power (they already have the ability to send the swat team to your door) unchecked via any sort of public accountability, they can erase anyone they want for no reasons but their own.

Hope your hot spouse doesn’t catch their eye. And if he / she hits on you, better not turn down any advances.

Anonymous Coward (user link) says:

Re: Re: Take away their power

There is a way to take away (some of) their power. Encrypt everything!

Until recently, that was difficult as the crypto-tools assumed that each person has an One-True-Identity. And by validating that identity you would establish trust in that identity. Both GPG and S/MIME take that for granted.

Nowadays we can do better. With widely distributed anonymous identities, it’s much easier to hide in the crowd. And it’s easier than signing up with an email address and password.

Check out http://eccentric-authentication.org/

Wally (profile) says:

Re: Re: Re:2 Stop making excuses, loser...

Color me wrong, but I think that the acting head of the IRS responsible for delaying non-profit status for conservative groups like the Salvation Army because they were a conservative group with the word “army” in the title of their banner. Obama appointed him. Obama may or may not be the worst abuser in US history but in modern day US, he’s more corrupt than Richard Nixon was during the Watergate Scandal.

Then there is his accuastion of Snowden being a computer hacker as he believed the word of the DOJ on that. He was responsible, could hae demanded things due to executive order, and he could have stopped it when he took office in late 2008…..he signed and expanded FISA in 2010 expanding upon the policy. PRISM was not spying on US citizens regardless of where they went in the world and only monitored those here on temporary visa before the FISA amendment in 2010…they simply included everyone.

Now, he was a rperesentative for the city counsil of Chicago in the Illinois State Senate and was close to a former mayor who got busted for tax evasion before the Obama Campaign in 2008.

I would say that this is a big problem.

Steve M says:

Re: Re: Re:3 Stop making excuses, loser...

Talk about ignorance. The head of the IRS when all this was taking place was appointed by Bush, not Obama. His name is Douglas Shulman, Google him.

The man who was brought in front of congress was on the job for a matter of months and nothing more than a fall-man for conservatives on a political witch hunt.

Anonymous Coward says:

Re: Re: Re:4 Stop making excuses, loser...

Shulman, who donated $500 to the Democratic National Committee in 2004, was appointed IRS Commissioner by President Bush in March 2008 and resigned in November 2012. (Bush was being bi-partition.)

During the 3 year and four month period beginning September 16, 2009 and ending January 31, 2013, Shulman visited the Obama White House almost twice as many times as any other current or former member of the Obama Cabinet.

Niall (profile) says:

Re: Re: Re:3 Stop making excuses, loser...

I’d like to hassle the IRS for their lack of persecution of so-called religious organisations, who contrary to their provision of tax-exempt status openly campaigned for one candidate over another during the recent Presidential election. Oh, that candidate they went for was Republican. Suddenly, a deathly silence on the conservative front.

Can’t have it both ways. Looks like the IRS is keeping things fair…

Also, what about the stories they’ve been picking on organisations with ‘Occupy’ etc in their name?

John Fenderson (profile) says:

Re: Re: Re:3 Stop making excuses, loser...

I don’t think the IRS “scandal” is actually an example of corruption. I think it’s an example of incompetence.

he’s more corrupt than Richard Nixon was during the Watergate Scandal.

I disagree emphatically with this. I’ve seen nothing from the Obama administration that rises to that level of corruption. Not saying it doesn’t exist, just that I’ve not seen it.

I’m not saying that Obama is some kind of angel. He’s a straight-up corporatist and acts as such. But we have to keep these things in perspective. The wrongs Obama has done (and continues to do) are bad, but not even in the top 10 of Bad Things Presidents Have Done in the 20th and 21st Centuries.

Saying that isn’t excusing Obama at all. It’s just being realistic.

Rocket5 (profile) says:

No right to know laws?

talk about rigging the game.

secret laws only help those with secret agendas.

period. full stop. end of story.

“we’re spying on you because there’s a law you have no right knowing about that says we can”

my guess is that if Washington, Jefferson, Franklin, and the rest of the founding fathers were alive to hear that, they’d roll up their sleeves and say “We really don’t think so. Time for you to go.”

Howard (profile) says:

Re: Where did our country go?

“I was raised in the 60’s. I have never before in my life felt as frustrated to be an American as I am now. I still love my country, deeply; but I’m very afraid of my government. They no longer represent the people.”

I am not american and don’t live in america. I grew up in the 60s too and I grew up to admire and believe in and respect america. I admired Kennedy and even Johnson, I admired the justice system and the people. I admired how the people and the press dealt with Nixon.

But something happened when Clinton was President. The right wing element in american society abandoned justice, they abandoned civility, they abandoned most of that democracy means except for the voting part. Since then I have watched a country that is, and I do not think I am exaggerating here, falling apart from the inside. I have watched a political system self destruct and is now not fit for purpose, and a ‘military complex’ and intelligence machine that is so deeply ingrained into all of the tentacles of power that I fear there is no escape.
As for not representing the people, I see it another way. I see a people who have abandoned their political system and handed it over to big business and big money.
For the first time in my life I really feel it when I see americans say ‘god bless america’. It really needs it.

Uriel-238 (profile) says:

Re: Harbingers of the Republic's fall.

“..We have successfully saved the government from the people but not vice versa, resulting in this great experiment being a failure?”

If it fails, yes. But great experiments often fail. That’s why they are experiments. This one was grand enough for nations across the globe to follow by their own volition in their own footsteps.

But France is still France after a revolution. And Russia is still Russia even after it went Soviet for a century. For this experiment to fail, it will have to fragment into sovereign states and not rejoin for a while. Longer than our lifetimes.

Maybe sheer determination to prevent the USA from failing is what will push us through this. But I doubt it. The elite love their money more than they love the United States, and they’ll spend it all defending that love if they must.

If we’re lucky, we’ll resolve this peacefully, yet long and hard is the road from perdition for our nation.

FM Hilton (profile) says:

Secrecy of laws

The DOJ is probably trying to figure out how to hide as many laws as possible through the ordinary means, too.

After all, do most Americans know that there is a database for Federal court cases that can be accessed by anyone with an account?

It’s called PACER, and you can get an account for free. Once you get one, you can look up nearly any case in it (if you have the correct information about it) and find out the details of that case, complete with filings, opinions and summaries for it.

http://www.pacer.gov/

You wouldn’t that if you didn’t need to, such as being involved in one.

Lawyers know about it, but I would guess by a long shot most ordinary citizens don’t.

I bet the DOJ would like to roll that one back, too.

Howard (profile) says:

Fear

The unfortunate truth is that the American people were essential frightened witless by the 11/9 attack on New York, and in response handed over every piece of liberty and freedom to the Government Security apparatus.

The Bush administration manipulated that fear and and rode it like a champion surfer, screwing every inch of advantage through the Patriot Act, and others.

Behind all of this fear is are bogus claims of “if it saves one life” and “we are at war”.

This is what the security agencies use when they arm-lock every politicians and every congressman and every President – and what they sell to every gullible american too lazy to actually ‘think’.

Politicians are easy meat on this, because they are scared witless that if they say no, and ONE person is killed, they will be blamed. AVOID ALL BLAME is the first principle of political life in the USA.

The people buy this nonsense because they are far too lazy to ‘think’.

In a country of 300 Million people, Osama Bin Laden managed to frighten the hell out of them by killing less than 3,000 of them on one awful day. He failed to achieve any success before that or since. But that one attack has turned the US and it’s people into shivering wrecks who have handed their lives over to the dark security agencies, lock stock and barrel.

Until Americans stand up and say NO. WE ARE NOT FRIGHTENED … You can kill a few of us. You can kill tens or dozens of us. Do your best. But we will NOT abandon the principles we have fought for for hundreds of years!

Until that time comes, then Bin Laden has achieved the most stunning and comprehensive victory over America and everything it stood for, that has ever been achieved in history.

Robyn says:

This is some pretty circuitous logic

Under this logic the US should never be separate from England because we were once part of England; under this logic England should have never adopted a democracy because the King previously ruled with absolute power

Under this logic: Black people should never have the rights that white people have as this was the way it was when the US was created and by in large before that point.

Of course I think we can all agree this is fundamentally nonsense and circuitous logic.

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