FISA Court Tells The DOJ That It Needs To Explain Why It's Ignoring Order To Declassify Surveillance Opinion

from the can't-just-say-no dept

Yesterday, we wrote about the DOJ responding to a FISA Court order that it declassify a FISA Court ruling on the interpretation of Section 215 of the PATRIOT Act (related to the bulk collection of metadata), in which the DOJ effectively told the court that it wasn’t going to obey. This was the extent of the DOJ’s reasoning:

After careful review of the Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided

Basically, yes you told us to declassify it, but we’ve decided that we won’t. Now, of course, the FISA Court itself is well aware what’s in that particular February ruling, and since it ordered it to be declassified, it doesn’t seem to think there’s a major reason to keep it secret. So, it took all of a day for the FISA Court to order the DOJ to at least explain itself better:

The government has provided no explanation of this conclusion.

Accordingly, it is hereby ORDERED that, no later than December 20, 2013, the government shall submit a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.

Of course, in keeping with FISC tradition, this is a pretty tame response to the DOJ basically giving a giant middle finger to the FISC’s earlier order. And, again, the FISC knows darn well what’s in the ruling that the DOJ refuses to make public, because it’s the FISC’s own ruling. So they seem to think that there’s good reason to declassify it. Hopefully, the FISC will actually, for once, stand up to the DOJ, but I’m not holding my breath.

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Comments on “FISA Court Tells The DOJ That It Needs To Explain Why It's Ignoring Order To Declassify Surveillance Opinion”

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28 Comments
That One Guy (profile) says:

Re: Re: Re:

They’d still have to make it public, otherwise the affected agencies would just claim to still be operating under the law(though not necessarily that law), and since they’d still be claiming that the ‘interpretation’ that granted them legality was classified/sensitive, you’d just end up in the same place as before.

Still, taking away one avenue of abuse by removing the interpretation or the section would certainly be a huge blow to them, so hopefully the FISA court will have the guts to do so if the DoJ does the expected and returns some nonsense, under seal ‘response’.

That One Guy (profile) says:

Re: Re:

It gets even more ridiculous when you realize the document in question is a legal ruling/opinion from the FISA court itself.

So the DoJ is basically saying that the FISA court, which made the ruling, isn’t qualified to determine whether or not said ruling is sensitive enough to be made public.

Or in other words ‘You don’t get paid to think, you get paid to agree with us and sign whatever we put in front of you.’

Anonymous Coward says:

Re: Re:

“why doesn’t FISA just release it? Is there some legal or technical reason DOJ has to be the one to release it?”

Pretty sure that once it’s been classified only the executive branch can declassify something. The other branches have some ability (aka through a case/heaing or via some oversight/money witholding), but it’s very limited and much easier for the executive branch to do it. The problem lies in why would they release something that’s in their best interest to hold onto? What’s the incentive?

As much as we’d like to think the government runs smoothly and properly, it’s run by humans which means it’s very incentive based. What’s my incentive? Where do I gain the most or have the easiest time? It’s basically Office Space. The problem is when we can let people (especially in government) get away with the easiest rather than the best.

Michael Donnelly (profile) says:

Or another way of looking at it:

Government: we can’t release the opinion because of Shiny Distracting Object.

Court: you failed to explain Shiny Distracting Object. You are ordered to submit a detailed explanation of Shiny Distracting Object.

And off we go, away from PUBLISHING THE GODDAMN LAW to fighting about pointless shit. I wonder what will happen next? My money is on “anything other than publishing the goddamn law”.

Shmerl says:

DOJ will just turn it into an infinite loop

They’ll say something along these lines:

After careful review of the Detailed Explanation by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Detailed Explanation about why the Opinion can’t be made public should be withheld in full and a public version of the Detailed Explanation cannot be provided.

Anonymous Coward says:

December 20th?? A full month? They should’ve given them a week at most.

In fact, screw asking for the “explanation” of what they aren’t giving it, they’ll probably just use another BS excuse such as “it will endanger national security if we do”.

Just tell them they are ORDERED to give them the info NO MATTER WHAT. They are the frigging judges that are supposed to be the OVERSIGHT of these guys. Use that damn power already over the NSA.

Anonymous Coward says:

how long is it going to be before everyone, including this bunch of ‘Yes Men’ on the FISA court, realise that the security services of the USA think they are above ALL laws, and i dont mean just those of the USA either! they think they can do whatever they want, whenever they, want wherever they want with absolute impumity, absolute no reason to explain themselves and definitely absolutely no way of being held accountable, let alone be punished! in other words, fuck every one, we will do the above and ignore all others!
this is what happens when any government body is allowed to go down a road of it’s own making, for it’s own purposes and not have accountability!

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