Feds To FISC: Of Course We Don't Have To Share Our Full Legal Filings With Companies Suing Us Over NSA Transparency
from the because dept
The DOJ has now filed its response, which basically says "we've revealed enough."
The Government's public brief meets and exceeds the requirements of Rule 7(j). The rule clearly provides that submissions to the Court "which may include classified information" will be reviewed by the Court "ex parte and in camera" and that adversarial parties will receive only "an unclassified or redacted version" which "clearly articulate[s] the government's legal arguments." Rule of Procedure 7(j). Not only does the Government's public brief "clearly articulate the government's legal arguments," the legal arguments are fully disclosed. The redacted information contains no additional legal arguments, no case citations, and no discussion of statutory or other law.Of course, that raises other questions. If the redacted portions (which are fairly large) don't raise legal arguments, then what are they doing?
The government also argues that the executive branch gets the right to determine what to redact and the court should defer to the government on such things:
... this Court does not independently review Executive Branch classification decisions.... Executive Branch classification decisions are entitled to "the utmost deference"... and that such deference is especially appropriate where the Executive Branch bases its classification decision, as here, on a review of all pertinent information, including whether disclosure of the data in the manner proposed by the companies would risk filling out the mosaic of information available to our adversaries in their efforts to assess and avoid our surveillance capabilities.And so we're back to the "mosaic theory," in which the feds argue they can redact stuff out of a fear that a bunch of random info can be put together by bad people to figure out more than the feds want to reveal. But... that makes no sense here. The companies are asking at this point that their own lawyers be able to see the arguments, not necessarily that the details be made public. The court could easily seal the filings from the public while letting the companies' lawyers see it.