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

Tech Dirt – by  Mike Masnick, June 10, 2013

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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2 Responses to DOJ Argues Secret Ruling Over Secret Unconstitutional Surveillance Must Remain Secret Because It’s Secret

  1. Elyag Reed says:


    We are concerned with the answers to have been provide the Congress and American people
    Regarding a number of key issues, in fact many members of Congress have stated that you have
    Been less than Truthful with many of your answers.

    Some but not all of these issues are:

    Fast and Furious gun Donation into Mexico amounting to a so far identified 2,000 weapons. A fact That you have denied.

    The IRS investigation which seems to have had your Personal Stamp of approval, but your not certain.

    The NSA details now emerging and your agency is calling for investigation of a Leak(er) rather than the Bad Pipes and Tanks in the storage system.

    There are many more but the fact that a number of officials have called for your removal should cause you some concern to at least save your reputation?

    We have a possible solution to your situation with a Citizens Grand Jury calling upon you to sort of come
    Clean. What, immunity before giving your information, well, We can’t promise you anything but it will be
    considered based on your level of cooperation – as you FBI parties would say. Right now thou some of our people as busy cooking tar in vats and the wives are cutting open old pillows for the feathers so you
    might want to make a Prompt decision..

    We are Legion

  2. NC says:

    HAHAHAHA!!! Oh man, the title of this article is absolutely priceless. What’ll they think of next…

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