FISA Court Rejects Catch-22 Secrecy Argument in FOIA Case

https://www.eff.org/deeplinks/2013/06/public-first-secret-court-grants-eff-motion-consenting-disclosure

by Titanous • 13 years ago

222 47 13 years ago

eff.org

mpyne4• 13 years ago

As well the FISA court should reject that argument.

fnordfnordfnord• 13 years ago

It's a surprise because it's one of the few times the FISC has said no to the gov't.

mpyne4• 13 years ago

Well, except for that one time when the court said a part of the law is unconstitutional and the government refused to mention the specifics of that ruling. ;)

adventured• 13 years ago

The EFF has been carrying an immense amount of weight throughout all of this. I'm not sure I can name another organization that has done so much. Their budget desperately needs to be expanded dramatically.

tghw• 13 years ago

We can help them do exactly that:

https://supporters.eff.org/donate

jevinskie• 13 years ago

I donated money and bought some stickers on Friday. They can definitely use our help! The EFF also helps us in our fight for jailbreaking rights.

rdhyee• 13 years ago

I think the ACLU is also an important organization in the fight to rein in NSA overreach. http://www.aclu.org/blog/national-security-technology-and-li...

culturestate• 13 years ago

Public Knowledge [ http://publicknowledge.org ] is shoulder to shoulder with the EFF. PK does the actual boots-on-the-ground lobbying in Washington that the EFF refuses to get involved in.

nakedrobot2• 13 years ago

Done :-) $65. I only wish they still had that awesome NSA tshirt! https://www.eff.org/deeplinks/2008/10/effs-new-nsa-spying-sh...

rayiner3• 13 years ago

"In fact, it took EFF longer to figure out how to physically file a motion with the FISC than it did for the FISC to dispatch with the DOJ's arguments."

joshfraser• 13 years ago

"Secret court" and "secret law"

What an absurd concept and a sad place for the US to be.

jivatmanx• 13 years ago

I wonder if they'd also have "secret police" were it not for the historical stigma?

dllthomas2• 13 years ago

We have the "secret service"...

mokus• 13 years ago

Agreed. We need a "catch-22" amendment, explicitly forbidding secret laws.

leoc• 13 years ago

The amendment should of course be a secret. :)

toufka2• 13 years ago

It'd be perfect. It would have been instigated by the fall of one character, name 'Snowden'.

http://en.wikipedia.org/wiki/Yossarian#Snowden

mpyne4• 13 years ago

Is the law itself actually secret? I thought someone linked to Section 702 straight off of the GPO website on one of the other stories.

Likewise the court itself is not secret. The proceedings are, which is worrisome in this particular case. But this would hardly be the only time that has ever happened, how many times have we seen e.g. the EPA sue a company and later the company settles for "an undisclosed amount" with the settlement itself held under a gag order?

discostrings• 13 years ago

Is the law itself actually secret? I thought someone linked to Section 702 straight off of the GPO website on one of the other stories.

In this context, "secret law" means that the executive branch refuses to share their interpretation of a law passed by Congress. So while it may seem certain what a law says and what its writer meant by it, the executive branch sometimes chooses to creatively interpret the law to do whatever it wants. If the executive branch fails to explain its rationale and interpretation of the law, and the interpretation is much broader than the law's intended purpose, it's effectively a secret law.

wycats• 13 years ago

There is no secret law. FISA, the law which authorizes surveillance, is a public law approved by Congress.

Courts make secret decisions all the time, especially when surveillance is involved. When a local police department gets a wiretap on a mob boss, it happens secretly. If a detective oversteps in the midst of a larger investigation, it's quite likely that the ruling about the particular use of surveillance would be sealed.

The question here is not whether we have courts that make secret rulings. It shouldn't surprise anyone that judicial oversight over in-progress investigations would be secret while the investigation (and related investigations) were in progress.

The useful policy question is what the scope and length of the seal should be. For FISA, it seems that the scope and length is "everything, and forever". We can do better than that.

LoganCale• 13 years ago

There is, however, a secret interpretation of the law, which the executive branch uses to apply the public law and which they refuse to reveal to the public.

btilly2• 13 years ago

Actually the USA does have secret laws.

Ask for the law requiring ID to travel. Nobody will show it to you. A decade ago an activist sued to try to see it, the case went to the 9th circuit, and he lost. Without being allowed to see the law.

See http://papersplease.org/gilmore/ for verification.

jellicle• 13 years ago

Nonsense. The U.S. has numerous secret laws related to terrorism, torture, and surveillance, which they have vigorously and successfully fought to keep secret in numerous court cases.

For example, this law was secret from 2002 to 2009:

http://www.guardian.co.uk/world/2009/apr/16/torture-memos-bu...

rayiner3• 13 years ago

There is nothing sad about it. The "secret court" (FISC) is a panel of regular U.S. District Court judges created by Congress in the FISA to add an additional layer of protection on activity that would otherwise operate entirely in secret within the executive branch. They key understanding is that it is empowered to grant warrants in situations where an Article III warrant would not be Constitutionally required (specifically, surveillance of foreign intelligence agents within the U.S.). Surveillance that would require a warrant under the Constitution still requires the government to obtain a warrant from an Article III court.

FISA did not move some previously public check on executive power into a secret court within the DOJ. Instead, it created an additional mechanism for the judiciary to exercise some supervision over executive activity that would not otherwise be subject to any judicial oversight under the Constitution.

ensignavenger• 13 years ago

Are you sure that FISC only applies to surveillance of foreign intelligence? I thought the FISC Verizon phone record ruling applied to US citizens and domestic phone calls?

uptown• 13 years ago

So the fight is for public disclosure of a decision of which the outcome is already known?

asperous• 13 years ago

Without releasing the decision there is no real proof I don't think.

coreyja• 13 years ago

I believe the decision was know as in we know that they ruled some parts of the law were unconstitutional. But if I understand correctly, it wasn't released what parts of the law were unconstitutional or why they were unconstitutional. This was for public disclosure of that information.

mtgx• 13 years ago

There can't be a democracy with "secret laws". I hope people will see that through whatever excuses the administration will try to launch next.

zmmmmm• 13 years ago

This is good to hear, but you have to really worry that there are people in the government who argued against it.

If the CIA wanted to do some useful domestic spying it would be far more beneficial to do their operations on these people. They are clearly a larger threat to democracy than any mere terrorist could ever be, and they are already INSIDE the system.

vaadu• 13 years ago

The ABA ought to threaten disbarment of any government lawyer that argues something so unamerican.

acqq2• 13 years ago

The relevant quote from the book written by Joseph Heller:

"The girls were crying. 'Did we do anything wrong?' they said. The men said no and pushed them away out the door with the ends of their clubs. 'Then why are you chasing us out?' the girls said. 'Catch-22,' the men said. 'What right do you have?' the girls said. 'Catch-22,' the men said. All they kept saying was 'Catch-22, Catch-22.' What does it mean, Catch-22? What is Catch-22?"

"Didn't they show it to you?" Yossarian demanded, stamping about in anger and distress. "Didn't you even make them read it?"

"They don't have to show us Catch-22," the old woman answered. "The law says they don't have to."

"What law says they don't have to?"

"Catch-22."

toufka2• 13 years ago

It's great that Snowden is a pivotal character in that story too!

acqq2• 13 years ago

However Snowden of the book unfortunatelly for him contributes the content of his dismembered guts:

http://en.wikipedia.org/wiki/Yossarian#Snowden

Captain Korn gives to General Dreedle is that Snowden died in one uniform, and his remains were soaked into Yossarian's, and all of Yossarian's other articles of clothing were in the laundry. General Dreedle says "That sounds like a lot of crap to me." Yossarian replies, "It is a lot of crap, sir."

csense• 13 years ago

Ignorance of the law is no excuse.

This is obviously a problem for people who wish to be law-abiding citizens if the laws themselves are secret.

Having too many laws for a single individual to keep track of can be nearly as good as having secret laws, when it comes to keeping people ignorant of the law, and thus making it easy for the government to persecute anyone they don't like by prosecuting them.

I read once about a defense attorney who played a game while riding along with a police officer. They would follow a car, and the policeman would win if he could point out a legitimate reason for which he could make a traffic stop, if he was so inclined.

The officer won every time, usually within a few blocks.

I saw a video [1] which noted that possession of a lobster can be illegal: "It doesn't matter if he's dead or alive. It doesn't matter if you killed it or it died of natural causes. It doesn't even matter if you acted in self defense! Did you know that? Did you know it could be a federal offense to be in possession of a lobster? Raise your hand if you did not know that. [audience raises hands] There's the problem!"

I don't think this situation is due to a conspiracy to take away our freedoms, on the principle that we needn't ascribe malicious intent when mere laziness and incompetence will suffice. Basically the law is a codebase with lots of sometimes-circular dependencies, which isn't refactored nearly aggressively enough, so the cruft accumulates. Taking into account that in the US the "initial commit" is hundreds of years old [3], there are ~50 forks, and it's still a fast-moving target, it's not surprising that the sheer amount of complexity is more than any one person can appreciate; even after decades of study and practice, AFAIK even the best professional lawyers are basically ignorant of the law in other specializations, and even within their own specialization they sometimes need teams of lawyers and paralegals poring over legal texts to find out exactly what the law says about their particular case.

[1] The quote occurs at about 6:55 [2] in http://www.youtube.com/watch?v=6wXkI4t7nuc

[2] The entire video is witty and informative, and it's something that everyone should watch at least once.

[3] Maybe it's more like thousands of years old -- if you go back through English law, there are probably things that go back to the Norman conquest in 1066, or Roman Britain even earlier.

FISA Court Rejects Catch-22 Secrecy Argument in FOIA Case

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