DOJ Argues Secret Ruling Over Secret Unconstitutional Surveillance Must Remain Secret Because It's Secret

from the and,-you-know,-it's-secret dept

About a year ago, after a lot of pressure from Senator Ron Wyden, the government finally admitted (late on a Friday) that, yes, indeed some of its surveillance efforts had been found unconstitutional for violating the 4th Amendment. But they didn't explain what, nor did they reveal the FISA court ruling which made that assessment. Since that time, the EFF has been fighting the government to get it to reveal the ruling. The DOJ refused to release it following a Freedom of Information Act (FOIA) request, and later said that even if it wanted to, it can't release the document, because only the FISA Court (FISC) could release it. But, in an earlier ruling in a different case filed by the ACLU seeking to reveal a FISC ruling, FISC had said that FISC couldn't reveal it, and the ACLU needed to seek the document from the DOJ. In other words, both the DOJ and FISC are pointing fingers at each other, saying that only the other one can reveal the document. In response, the EFF has asked for confirmation from FISC that if a district court rules against the DOJ and tells it to release the document, that FISC will actually do so.

Now, the DOJ is fighting back with the most circular and ridiculous logic imaginable:
In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.

The government’s argument is guaranteed to make heads spin. DOJ earlier argued that it lacks discretion to release the FISC opinion without the FISC's consent, but DOJ now argues that if the FISC were to agree with EFF, “the consequence would be that the Government could release the opinion or any portion of it in its discretion.” But FISC material is classified solely because the Executive Branch demands that it be, so release of the opinion has always been a matter of Executive discretion.

Frankly, it’s difficult to understand what DOJ is saying. The Government seems to have a knee-jerk inclination towards secrecy, one that often – as in this case – simply defies logic. The government's bottom line is this: their rules trump the public's statutory rights. But it's not the province of the Executive branch to determine which rights citizens get to assert.
Basically, the finger pointing continues. However, considering the increasing concern about vast government surveillance, it certainly seems like the government should start looking into being a hell of a lot more transparent, and it could start by giving up this game and releasing that FISC ruling.

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  • icon
    Jay (profile), 10 Jun 2013 @ 6:20am

    /circlejerk

    I'm pretty sure that the DoJ hangs out in 4chan.

    I've never seen such an organization troll so professionally...

    reply to this | link to this | view in chronology ]

  • icon
    Alana (profile), 10 Jun 2013 @ 6:21am

    [This comment has been redacted by the Secret Agency of Secret Secrets.]

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 10 Jun 2013 @ 7:45am

    Mike--

    I haven't seen you this excited in a while. I'm happy for ya. I know how great this all is for a government hater like yourself. Milk it, baby! Milk it! Milk it for all it's worth!!! Spread that FUD! Spread that hate! Yea!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jun 2013 @ 7:51am

      Re:

      Thanks Kanye.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jun 2013 @ 7:53am

      Re:

      How is this FUD?

      He's calling out terrible arguments from people who are using every trick in the book to avoid letting people realise what they've been spending tax payer money on.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jun 2013 @ 7:53am

      Re:

      You hate TD so much you'll even troll an important topic like the government running amok? The rights of the people are not trivial and reining in governmental organizations that abuse the public's rights is an important topic.

      However, as you want nothing better than to troll TD without contributing to the conversation, you must be a sad and frustrated little man.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jun 2013 @ 7:56am

      Re:

      So, so the goverment's PRISM program is mentioned on techdirt and the trolles claim Mike will bury it

      Then the trolls claim Mike hates the goverment with no supporting evidence whatsoever.

      LOL

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 10 Jun 2013 @ 8:11am

        Re: Re:

        Are you kidding me? The evidence that Mike hates the government can be found in every blog post he writes about the government

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 10 Jun 2013 @ 8:33am

          Re: Re: Re:

          Given what the government is doing, I'm not do happy with them either. I am glad someone is bringing up the topic and spurring on discussion. This is not a trivial topic and has the ability to affect how the government behaves in the future.

          Feel free to roam off topic and use it and any other topic as an excuse to bash TD, it only makes you look shortsighted and stupid. I take it you are not concerned with an overreaching government?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 10 Jun 2013 @ 9:14am

          Re: Re: Re:

          There's a big difference between hating *abuse of power* and hating the government. Just like there's a big difference between hating *abuse of copyright* and hating copyright. That you appear unable to tell the difference between either situation says a lot about you... and none of it good.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 10 Jun 2013 @ 10:38am

            Re: Re: Re: Re:

            Oh, I understand all sorts of nuance. Still, it's clear to me that Mike hates copyright and the government. Perhaps, if you disagree, you could tell me the exact parts of copyright or the government that Mike likes?

            reply to this | link to this | view in chronology ]

            • icon
              John Fenderson (profile), 10 Jun 2013 @ 11:07am

              Re: Re: Re: Re: Re:

              You're the one making the active assertion that Mike "hates" stuff. How about you providing some kind of actual argument with evidence?

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 10 Jun 2013 @ 1:12pm

              Re: Re: Re: Re: Re:

              Please point out exactly where Mike hate either of those. You're the one stating that he hates both, whereas anyone with a logical mind at all can read what is posted to see what he dislikes about both without condemning either. He's advocated for shorter copyright terms, not abolishing it. He's called for fixes to the DMCA, not scrapping it. So tell us, how does he hate copyright? We already know that you can't tell the difference between hating a facet of a thing and hating the thing altogether.

              reply to this | link to this | view in chronology ]

    • icon
      btrussell (profile), 10 Jun 2013 @ 9:38am

      Re:

      Hi Harvey!

      reply to this | link to this | view in chronology ]

  • identicon
    pegr, 10 Jun 2013 @ 7:52am

    Please keep in mind...

    Secrets imply deception.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2013 @ 7:54am

    You've been found guilty by a court.
    - Interesting, which court?
    Sorry, that's secret. But we have evidence...
    - Show me, so I can defend myself!
    Sorry, secret too.
    - By which method did you get this stuff?
    Again, sorry, that's secret.
    - And now about your punishment...
    Is that a drone I hear outside...?
    - Yup, that's secret too. But soon it won't matter for you anymore...

    reply to this | link to this | view in chronology ]

    • icon
      tracker1 (profile), 10 Jun 2013 @ 12:21pm

      Scary...

      I know this is getting flagged as funny.. but given the number of prisoners at Gitmo for over a decade now without a trial, I'd say it's leaning closer to insightful. Not to mention the actions of our government are clearly heading in this direction.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2013 @ 7:56am

    Yo dawg. I heard you like secrets...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2013 @ 7:58am

    Admit they were wrong, never!

    "...it could start by giving up this game and releasing that FISC ruling."

    That would require them to admit they were wrong and that will never happen.

    Our only hope is that some FISC clerk/judge will be a good American patriot and leak this information.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    out_of_the_blue, 10 Jun 2013 @ 8:04am

    Mike, apply your Google standard: "no evidence of real harm",

    and then you circularly have no reason to want to know!

    Mike can't be consistent that surveillance is universally bad because he's pro-Google. He can only keep avoiding the obvious similarities -- and that's QUITE difficult after explicit "leaks" that NSA has direct access into Google.

    But on the up side, we've gone how many hours now without a Prenda law item?

    reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 10 Jun 2013 @ 8:43am

      Re: Mike, apply your Google standard: "no evidence of real harm",

      you know, at this point, i'm just simply hating on your lame ass...
      FOAD, shithead...

      reply to this | link to this | view in chronology ]

    • icon
      Rapnel (profile), 10 Jun 2013 @ 11:11am

      Re: Mike, apply your Google standard: "no evidence of real harm",

      Yes, that's right, because google makes law, collects taxes, disseminates your taxes, determines constitutionality, wages wars, fosters secret courts, feeds the hungry and mines the totality of global data in order to protect your children. Oh and with the added bonus of finding shit you're looking for and selling ads.

      That's just fantastic, Blue and I'm so very glad you're with us. Your total comprehension skills are world class.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2013 @ 8:30am

    Best idea ever!

    Public up in arms over massive, pointless spying?
    Tell them "we're going to keep spying because nobody has the authority to stop us".
    Yeah, that'll go over well.

    reply to this | link to this | view in chronology ]

  • icon
    RyanNerd (profile), 10 Jun 2013 @ 8:48am

    First [redracted] enemy and now this

    So trampling all over the 4th amendment the DOJ takes it a step further and by making it impossible to face your accusor they stomp on the 6th amendment as well.

    reply to this | link to this | view in chronology ]

  • identicon
    ScytheNoire, 10 Jun 2013 @ 9:01am

    Secrets

    Any time a government is secretive it means they are doing something wrong. Bad governments. BAD! *smack with stick*

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2013 @ 9:02am

    From the embedded document:

    "A release involving the disclosure of some parts of a FISC opinion while concealing other parts creates a substantial risk of public misunderstanding or confusion regarding this Court's decision or reasoning."

    As opposed to the current situation?

    reply to this | link to this | view in chronology ]

  • identicon
    PWGuy103, 10 Jun 2013 @ 9:17am

    Even Chinese Citizens want more info

    "Chinese internet users call for an Edward Snowden of their own"

    http://qz.com/92632/chinese-internet-users-edward-snowden-nsa-prism-surveillance/

    Score one for global democracy.

    reply to this | link to this | view in chronology ]

    • identicon
      Michael, 10 Jun 2013 @ 9:41am

      Re: Even Chinese Citizens want more info

      As it happens to turn out, the ORIGINAL Edward Snowden is looking for a new country as we speak! This is a fine opportunity for those of you in repressed nations around the world to get your hands on your very own Edward Snowden!

      We can put him on eBay! Well, I guess we can put him on eBay.uk or something. A US company may lose it's funding sources and credit card processing providers if they get involved.

      reply to this | link to this | view in chronology ]

  • identicon
    RubyPanther, 10 Jun 2013 @ 10:01am

    This is a pretty dumb story. First of all, the Courts have to tell us if it is Constitutional or not. Don't forget all the parts of the Constitution that lay out the different powers. And Courts can of course order things sealed. And so once we let Congress pass a law that creates a secret Court, yes, we then lose oversight. It sucks, but there is nothing un-Constitutional about it. And if there is a ruling that is Classified, and the secret Court also seals it, then they might be right; declassifying the ruling might very well defy the order.

    There is lots and lots of room to dislike these things and complain about them without being shrill and wrong.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2013 @ 10:12am

    in other words, because it works for them, they are trying to use bull shit to baffle brains!!

    reply to this | link to this | view in chronology ]


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