DOJ Argues FISC Opinion Preferable To 2nd Circuit Opinion While Defending Ongoing, Unaltered Metadata Collection

from the WE-HEART-FISC dept

The Memorandum of Law the FISA Court ordered the DOJ to make public in response to Ken Cuccinelli/FreedomWorks’ challenge to the immediate return of Section 215 “business as usual” following the expiration of the authority at the end of May. (Followed almost immediately thereafter by the passage of the USA Freedom Act, carrying with it a six-month “transitional” collection period.)

In it, the DOJ makes its case for uninterrupted bulk metadata collection, as if the authority a) hadn’t been allowed to expire and b) hadn’t had its legality challenged by the Second Circuit Court. Right now, it’s all a very gray area and the DOJ aims to take advantage of it. Due to the fact the surveillance reform bill didn’t pass until after the expiration of the authority, the six-month window granted may theoretically allow for an uninterrupted collection, but it’s completely unclear as to what legal authority allows the government to do so — at least in its present, unaltered form.

The DOJ claims in its late-night FISC filing that the USA Freedom Act itself gives it permission to run an unaltered Section 215 collection for the next six months.

The USA FREEDOM Act authorizes the Government to seek and this Court to issue an order under Section 1861 for the production of tangible things in bulk for 180 days in the same manner as authorized in docket number BR 15-24 and prior related dockets. The USA FREEDOM Act bans the bulk production of tangible things under Section 1861 effective 180 days from its enactment, which is when Sections 101 through 103 take effect. Id.§ 109(a). Its brief lapse notwithstanding, the USA FREEDOM Act also expressly extends the sunset of Section 215 of the USA PATRIOT Act, as amended, until December 15, 2019, id.§ 705(a), and provides that, until the effective date of the amendments made by Sections 101 through 103, it does not alter or eliminate the Government’s authority to obtain an order under Section 1861 as in effect prior to the effective date of Sections 101 through 103 of the USA FREEDOM Act. Id.§ 109(b). Because the USA FREEDOM Act extends the sunset for Section 215 and delays the ban on bulk production under Section 1861 until 180 days from its enactment, the Government respectfully submits that it may seek and this Court may issue an order for the bulk production of tangible things under Section 1861 as amended by Section 215 of the USA PATRIOT Act as it did in docket number BR 15-24 and prior related dockets.

As Marcy Wheeler notes, the DOJ has inferred Congressional intent by cherry-picking supporting quotes from representatives.

It cites comments Pat Leahy and Chuck Grassley made on May 22 (without, curiously, quoting either Rand Paul or legislative record from after Mitch McConnell caused the dragnet to lapse) showing that the intent of the bill was to extend the current dragnet.

What really makes the DOJ’s memo worth reading is its off-hand dismissal of the Second Circuit Court’s finding that the bulk collection is not actually authorized by existing law. It simply states that it finds this court’s opinion less likable than the FISA Court’s interpretation of this legal authority.

The Second Circuit’s recent panel opinion in ACLU v. Clapper, No. 14-42 (2d Cir. May 7, 2015) does not bar this Court from authorizing the production in bulk of call detail records, notwithstanding its holding that Section 1861 does not authorize the bulk production of call detail records. The Government believes that this Court’s analysis of Section 215 reflects the better interpretation of the statute, see, e.g., In Re Application of the FBI for an Order Requiring the Production of Tangible Things, docket no. BR 13-109, Amended Mem. Op., 2013 WL 5741573 (FISA Ct. Aug. 29, 2013) (Eagan, J.) and In Re Application of the FBI for an Order Requiring the Production of Tangible Things, docket no. BR 13-158, Mem. (FISA Ct. Oct. 11, 2013) (McLaughlin, J.), disagrees with the Second Circuit panel’s opinion, and submits that the request for renewal of the bulk production authority is authorized under the statute as noted above.

In support of this “argument,” it cites the FISA Court’s own complicity in rubber-stamping order after order for several years in a row.

With respect to application of Section 1861 of FISA, as amended by Section 215 of the USA PATRIOT Act, following careful consideration of the law by nineteen different judges, this Court has authorized the bulk production of call detail records to NSA forty-one times since May 2006.

The DOJ’s response to Cuccinelli’s challenge has yet to arrive and, obviously, this memorandum was written before the challenge arrived at the FISA Court. But given this filing’s dismissal of both the Second Circuit Court’s decision and any legal vagueness surrounding the lapse of the Section 215 authority, it’s likely its response will be more of the same.

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Comments on “DOJ Argues FISC Opinion Preferable To 2nd Circuit Opinion While Defending Ongoing, Unaltered Metadata Collection”

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Prescott9 says:

Re: Nothing short of storming the courthouses, it seems...

}} “At what point are we able to declare the DoJ a rogue agency?”

… at what point are you able to declare the Federal government a rouge agency ?

DOJ is merely one of a hundred rogue agencies — can you spot the forest formed by the trees ?

DOJ is not acting independently — the President, Congress, or SCOTUS could easily leash it tomorrow. But they do not & have not ever chosen to restrain DOJ — instead they vastly increased DOJ power over the decades. They like the way DOJ operates– it well serves their overall objectives in controlling the citizenry.

DOJ is successfully playing rope-a-dope with the lower courts and the American people — a well tested and proven strategy.

Your faulty assumption (shared by most Americans) is that the U.S. still operates under the rule-of-law & principles of justice.

Uriel-238 (profile) says:

Re: Re: Rule-of-law & principles of justice

Some people in the United States DoJ still pretend to. On occasion we some degree of outrage by a justice regarding the blatantly unprofessional conduct of law enforcement officers or prosecuting attorneys.

I think my faulty assumption is that the DoJ is small enough to function as a unified front, where some jurists mean well, others (possibly the majority) favor to serve vested interests rather than what best serves the people.

The pace of corruption has been fast outrunning the pace of reform, and those of us who want to trash and rebuild are frustrated by the necessary contingencies: enough people have to suffer long enough to be outraged themselves (since perspective is not very contagious) and it won’t do us any good if we just install new people in the same old offices. We need to make a system that is better, or at least a newer, experimental system that we think should be better.

In the meantime, why do we teach our children that law officers and lawyers are good people who do good work when they are lieutenants and enforces in an oversized state-sanctioned street-gang? We should be discouraging our children from aspiring to such occupations. We should be shunning those who are so employed.

Uriel-238 (profile) says:

Re: I take someone has appealed to a higher court

…and that is why the mass data collection program is running at flank.

It’s like the frikken One Ring. It’s never done anything towards what was promised it would do, all it’s mechanations have been invisible and everyone on the inside desperately clings to it like it’s their precious.

I get the feeling that once ther are no more legal obstructions to a shutdown, it will still not be stopped.

Our mass data collection and surveillance program is more precious than the integrity of the United States.

Anonymous Coward says:

This is precisely why we have Article 1 Section 9

John Robert Super Secret Pseudo Court can pontificate on any subject it wants, since it has 1st amendment rights. But since it has no jurisdiction it doesn’t mean anything, legally speaking.

This is one part of the Constitution that is quite specific. So the DOJ can cite the guy at the local burger window and it would carry as much weight. Hell, why not just declare themselves a court and bypass review entirely?

The reason we don’t suspend habeas corpus in this country, is because the law derives its authority from the governed. Without habeas corpus there is no jurisdiction. Thus FISC is not a court of law, though it may be a court of other things. But hey, it’s a free country (for the moment) so they are welcomed to set up a cool kids court if they want.

But citing such a court is not something someone does while expecting to be taken seriously. At least not in a country based on the rule of law.

Uriel-238 (profile) says:

Re: How does Habeus Corpus establish authority?

I assumed that law was derived from the barrel of a loaded gun. The police are better armed than we, and act as a garrison anyway (or more accurately, the enforcers of a racketeering mob), and that is why the court has authority.

Because if we didn’t recognize the court, they’d just massacre the people.

You know, like in feudalism.

I’m sure this is not how our framers necessarily expected the Department of Justice to work, but it’s how it does work, and that’s how we have separate courts in which commoners are held to a higher standard of conduct than law enforcement or the wealthy.

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