Judge Gives DOJ Until The End Of The Month To Submit Declassified Opinion Containing FISA Court's Justifications For The Section 215 Program

from the surveillance-state-sausage-making dept

It appears the government will finally be releasing the FISA court’s thought process justifying the mass harvesting of Americans’ metadata from fully-immunized telcos under the Section 215 program (now 501). An earlier court order from FISA judge Dennis Saylor discussing the potential release of this court opinion described it thusly:

The government has identified the Opinion issued in Docket Number BR 13-25 on February 19, 2013, as one that “contain[s] analysis by this Court evaluating the meaning, scope, and/or constitutionality” of Section 215 of the USA PATRIOT Act, codified as amended at 50 U.S.C. § 1861.

Whether it will be instructive and enlightening (rather than stuffed full of Third Party Doctrine bullshit and circular “it’s legal because it’s legal” reasoning) remains to be seen. But the last two words of that previous sentence are something at least: it will “be seen.” And, apparently, with a minimum of redactions.

For the reasons stated herein, the Court is directing the government to prepare and declassify a redacted version of the opinion issued by the Foreign Intelligence Surveillance Court (FISC) in Docket Number BR-25 on February 19, 2013.

The ACLU (and others) have pushed for a release of this particular FISC opinion for more than a year now. The court doesn’t even attempt to address the First Amendment implications of withholding the opinion from the public because there are plenty of other angles justifying its release. The court notes that the release would serve the public’s interest as recent disclosures (both authorized and unauthorized) have brought the Section 215 program into the court of public opinion (as well as actual federal courtrooms).

While the FISA court may have arrived at this conclusion based on ongoing events, the government arrived somewhere completely different.

After appropriations had been reinstated and a timetable for declassification review had been set, the government advised that, “[a]fter careful review of the [February 19, 2013] 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.”

The FISA court asked for the combined brain power of the DOJ, Executive Branch and an unspecified number of “senior intelligence officials” to explain their thought process and got a lot of unintelligible mumbles and floor-staring in return.

Noting that “the government has provided no explanation of this conclusion,” the Court ordered the government to submit “a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.”

Duly chastened, the brain trust resorted to one of its favorites: making this info public would jeopardize ongoing investigations. But it conceded that the opinion could still be declassified if a sufficient amount of black ink is spilled. The FISC pressed harder, asking for narrower redactions that removed only the targets in question, rather than the accompanying language that would clarify the court’s stance on the bulk collection issue. Surprisingly, despite its lack of practice with operating anything narrowly-defined or targeted, the government managed to come up with a redacted version that satisfied the unexpectedly demanding FISA court.

[T]he Court notes that releasing the February 19, 2013 Opinion pursuant to the Second Redaction Proposal achieves the basic objective sought by the movants: disclosure of the Court’s legal reasoning, to the extent that it can reasonably be segregated from properly classified facts. There is an inherent risk that the end product of such an exercise “may confuse or obscure, rather than illuminate, the decision[ ] in question.” In re Motion for Release of Court Records, 526 F. Supp.2d at 495. On balance, however, the Court is satisfied that publication of the February 19, 2013 Opinion in conformance with the Second Redaction Proposal would enhance, rather than detract from, public understanding of the Court’s reasoning as to the legal issues presented.

Well, I guess we’ll see what it looks like when we get it. August 29th is deadline for the submission of a formally declassified version of the (supposedly) narrowly-redacted opinion. The FISA court then needs to give it a quick once-over before publishing it “immediately” to its website. I don’t expect to see it any sooner than the end of this month, but we’ll be taking a good look at it when it finally arrives.

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Comments on “Judge Gives DOJ Until The End Of The Month To Submit Declassified Opinion Containing FISA Court's Justifications For The Section 215 Program”

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Gumnos says:

This just in, redacted version availble

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█████████, ██ ██████ ██ █████ ████ █████████████ ███ ██ ████
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███████; ███ ██ ██ █████████ ████ ████ █ █████ █████ ██ ████
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███████ ██ █ █████ █████ ██ ██ ███████ ████████ ███████ ██
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██ ███ ███████, ██ ███ █████ ██████ ██████–

Anonymous Coward says:

The government is well known to show how well it can use black ink. I expect nothing less than a full cover up, given the government’s attitude.

This is not in keeping with the tenants of this countries laws, nor the expectations of it’s citizens. I suspect we’ll have some more active court cases coming since no other way gets the attention of the government from the people.

That One Guy (profile) says:

Re: Re: Or what?

I’ll believe it when I see it, especially when it comes to potential sanctions against members of the DOJ, given the number of judges with the guts and spine to do something like that are few and far between.

Not to mention, even if you found such a judge, then you have to find someone willing, and able, to enforce those sanctions.

Anonymous Coward says:

Re: Re:

To follow on to that so everyone doesn’t go “Duh!”…

If a case involving tracking by the NSA or any other government agency comes out, you can bet that the level of tracking that occurs in commerce daily will be revealed. And how it’s used. In other words the dirty laundry of the ad world will come to light.

And to put that into other words, we are now talking about money. Lots of it. And we’re talking about their money as a matter of fact. Or rather, we would be.

Do you think ABC/NBC/CBS/etc really spend a lot of time investigating the practices of their largest advertisers?

GEMont (profile) says:

A crock of shit by any other name would smell as much

This is just another 30 day suspension on the public’s ability to know what is being done in its name.

It is soon to be followed by another 30 day suspension and another 30 day suspension and then a capitulation by the courts that the DOJ was indeed correct and that the documents can stay safely hidden from the US public indefinitely. Doing it this way makes it look as if the courts are actually doing their job. Great PR stunt.

Its called stalling for time. The longer they can stall the more info they can gather, the more money they can make through bribery and blackmail, and the more control they can assert over others. Stall long enough and they can gather it all and then sit back and grin.

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