Judge Orders DOJ To Hand Over FISA Court's Justification For Bulk Data Collection On Americans In FOIA Lawsuit

from the this-could-get-interesting dept

Late Friday, a judge in California ordered the DOJ to hand over key rulings from the FISA Court concerning the legality of the bulk records collection under Section 215 of the PATRIOT Act. As you probably know by now, Section 215 is the “business records” provision, that the government claims allows the NSA to collect phone and other records on all communications in the US (despite the fact that the law itself is limited to the FBI and is only supposed to be about records related to terrorism). The FISA Court, however, has broadly (mis)interpreted the law, but done so in secret, such that the NSA now believes it can get basically any phone record (and lots of other kinds of records as well). The EFF filed a lawsuit after its attempt to get access to the relevant FISA Court interpretations (five of ’em) was denied, and the judge is now ordering the DOJ to let them see the rulings in question, after a heavily redacted deposition wasn’t satisfying enough. The ruling is worth reading. The judge basically says that the DOJ has very little credibility on these things, having withheld info it should have released in the past.

Here, the Court finds that an in camera inspection of the subject documents is warranted. The evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required. Further, the withholding followed an Order from this Court expressing concern that the agency had failed to explain sufficiently why the withheld documents “would be so replete with descriptions of intelligence activities, sources and methods that no portions thereof would contain” reasonably segregable and producible, non-exempt information….

Further, the Court finds that the public’s interest in the documents withheld is significant. The scope and legality of the government’s current surveillance practices of broad swaths of its citizenry is a topic of intense public interest and concern…. In light of this public interest, in camera review to assure that the agency is complying with its obligations to disclose non-exempt material is certainly merited. Finally, as the parties have narrowed the range of documents for review, the burden on judicial resources is not significant.

Of course, there’s no guarantee that the judge will release the actual rulings, but this is clearly a step in the right direction.

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Comments on “Judge Orders DOJ To Hand Over FISA Court's Justification For Bulk Data Collection On Americans In FOIA Lawsuit”

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22 Comments
Lurker Keith says:

Re: Re:

The fact these are secret means the terrorists already won.

Laws cannot be secret in a Democracy, Republic, or whatever we have. Secret Laws are anti-democratic by definition.

Also, in order for “ignorance of the law is no excuse [for committing a crime]” to work, the People MUST know (or at least have a reliable means of finding out) what EVERY Law is, AND what those Laws are thought to mean by those enforcing them. If someone CAN’T know the Law, they are ignorant of the Law, & if they can’t know the Law, how are they expected to avoid violating it?

Anonymous Coward says:

It starts slow, one request for a FOIA.

That gets denied for a plainly BS excuse. Then another, another, next thing you know all types of people are asking for what is hidden.

This administration and the DOJ have particularly rode the stonewalling to it’s very end. Now you have judges questioning the validity of items hidden.

Soon or later everyone catches on and then the court cases start, just as DOJ has pretty much demanded of anything it deems sensitive and has been known to be overly paranoid about what it reveals.

We are seeing the knocking on the door of disassembling some of the stonewalling and the issues of spying on it’s own people. The crack in the door is there and given enough time it will be opened.

That One Guy (profile) says:

Re: Data Trickle Down Theory

At this point, and with how much utter contempt the government has shown towards the courts, it wouldn’t surprise me in the least.

‘Well sure we’ll get you those documents… just as soon as we can find them. Funniest thing, we seem to have misplaced them, and forgot to write down where we put the things, might take a while to figure out just where they’re located, say, a couple of years or so, maybe more?’

Anonymous Coward says:

Re: Re: Re:2 Data Trickle Down Theory

Perhaps the leaks could be used with more imagination. I wouldn’t put it past the CIA to be running child sex trafficking rings to raise money, and blackmailing clients, human experimentation in the downtime, and then harvest the organs of the children when they turn 18. They really are that damn immoral.

That One Guy (profile) says:

Re: Re: Re: Data Trickle Down Theory

Unfortunately, so far the judges involved either don’t have the dignity, respect for the law, courage, or power to actually punish the various government agencies for their actions, as all they’ve handed out is empty threats along the lines of ‘next time, next time you get caught doing this I’ll really bring the hammer down, and don’t think I won’t!’.

And then the next time comes, and they repeat the same empty threats.

Given that, it’s not hard to see why the various agencies show a complete and utter lack of respect for the courts, the judges are either toothless or cowards, and both sides know it.

Anonymous Coward says:

It’s outrageous American citizens are being bound and subjected to interpretations of laws that they’re not allowed to read, study, or understand.

“Ignorance of the law is no excuse.” Yet that’s exactly what’s happening in America today. Citizens are being charge under secret laws and in secret court sessions. Without even being able to understand the laws being used to imprison them.

It’s tyrannical justice! There’s no denying it.

Anonymous Coward says:

Re: Re: Re:

Such secret laws and secret interpretations allows officers and agents of the government to claim that any action they takes is legal. They are tyrannical in that they remove a citizens ability to challenge any action by government officers and agents. Incidentally the government denying people the standing to challenge their actions because they cannot show that were affected is also tyrannical, for the same reason, it removes any checks on the actions of governments.

Anonymous Coward says:

Re

What i’d still like to know is, how court rulings could be secret in the first place? i find it baffling that there isn’t more outrage about that in the first place.
i’m not talking about legality, so much as i’m talking about the USA being a modern, civilized, nation. stuff like that doesn’t strike me as anything of the sort.

rapnel (profile) says:

Re: Re: Re: Re:

Hm. I think maybe you’re both right. The dod is managing the country with our money so that those idiots with lots of money can continue to feast off of the rest of our money and then using that money they continue to adversely influence who gets elected and what they do when they get there, including funding their defense.

That’s a burrito. Whole enchilada. Full wrap to tap. Round doughnut with the munchkin. Eat up.

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