Justice Dept. defends secret rulings in new spy court filing

http://gigaom.com/2013/07/08/justice-dept-defends-secret-rulings-in-new-spy-court-filing/

by ferdo • 13 years ago

139 94 13 years ago

ferdo7• 13 years ago

Looking at history it would seem that when law disappears from view, people disappearing isn't far behind.

rayiner6• 13 years ago

The actual article, without the blogspam and inaccurate title: http://gigaom.com/2013/07/08/justice-dept-defends-secret-rul...

The gist of the DOJ's argument is sound. The key thing to understand is that the FISC court is not making law. It is interpreting the government's powers under existing law. This is a process the executive regularly engages in: it asks itself, is this activity legal? This is the only way it can act, indeed the only way anyone can act, within a federal court system that does not allow courts to issue advisory opinions. You interpret the law to determine whether your course of action is constitutional.

Without secret FISC rulings, you'd have secret NSA legal interpretations. The FISC can't grant the executive any power it didn't otherwise have--it exists instead as a check on the discretion the executive would otherwise have in using that power. Nothing forces the government, or any other entity, to publicize its interpretation of law until it is challenged in public court.

EDIT: I should note that I don't think the DOJ's argument is necessarily the "right" one. Or the "best" one. But I think it's sound. It's based on a conservative interpretation of the scope of the executive's powers, but not one that's outside the mainstream.

md224• 13 years ago

Nothing forces the government, or any other entity, to publicize its interpretation of law until it is challenged in public court.

Okay, that's a solid legal perspective, but what about a normative perspective here? Is it a good thing that judgements of interpretation are inaccessible to the public?

rayiner6• 13 years ago

I think it would be impractical to force every federal agency to put make every legal interpretation public, simply because people wouldn't do it. They'd just avoid putting things down in writing instead. Ultimately, any internal interpretations have to be solidified and put down in writing in any court proceeding. I think that is the backstop against internal interpretations run amok. And it does function as an effective backstop in other areas of government, where every agency action is met by dozens of legal challenges that play out in public courts. The problem with the NSA situation is that the NSA's actions are not subject to regular court challenges, and that's by design. Congress made it that way.

tptacek15• 13 years ago

A thread from earlier today that went into some diagnostic depth on this point:

https://news.ycombinator.com/item?id=6008976

ferdo7• 13 years ago

The gist of the DOJ's argument is sound.

That's a matter of opinion. If one is in favor of government power over the Constitutional rights of individual citizens, then I guess it makes some kind of sense.

If one is more partial to individual rights over the power of government, this law just looks draconian.

This is all beside the fact that the NSA has always considered itself beyond the law anyway:

"NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency."
According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes."
http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...

cldr3• 13 years ago

That's a matter of opinion

Well, whether or not an argument is sound (is never|shouldn't be) a matter of opinion. Soundness has nothing to do with whether the premises are true or not, it just means that if the premises are true, the conclusions necessarily follow. Whether the argument is _valid_ or not is a different matter.

I'm not commenting on the article or anything, I just thought I'd point that out.

rayiner6• 13 years ago

It is a matter of opinion, but I think you mischaracterize the choices. There is legitimate debate about what kind of balances the Constitution strikes with respect to individual rights versus the executive's authority with regards to foreign affairs and war.

I think it is pure folly to look at the Constitution with libertarian-colored glasses. The Constitution pre-dates modern conceptions of libertarianism that place individual rights above all else. It was a document preoccupied with outlining a system of republican governments. Representative governance was the first principle, not individual rights. Individual rights are part of the scheme, but they are the exception to the general rule of power exercised by a representative government.

It was also a document that was a direct response to a previous document that was deemed to leave the federal government with insufficient powers in the areas of internal security and foreign relations. The failure of the federal government to put down an internal insurrection was a major motivation reason for the calling of the constitutional convention. That fact cannot be papered over or forgotten in the obscurity of history.

The NSA's interpretations are not inconsistent with its abiding by the law. For better or worse, the Constitution was designed to create an executive with extensive powers in the areas of war and security. It is not inconsistent with the Constitution for the NSA to assert that it does not need enabling Congressional legislation to function. At least, that's one perfectly reasonable interpretation of the Constitution.

Similarly, the 4th amendment has never applied to things that cross the border. One of the very first things that First Congress did was pass legislation creating a customs apparatus with warrantless border searches. It's not at all controversial, legally, for the NSA to assert that 4th amendment protections do not apply to communications that cross the border.

oceanstone2• 13 years ago

The FISC court has repeatedly made the wrong decisions. When their decisions have been brought to light, there's been massive public outrage, and an effort on their part to to arrest the "leaker". These are all signs of a corrupt court, that needs to be dissolved.

mpyne5• 13 years ago

Public outrage is not prima facie evidence of a wrong decision being made. If public outrage were all that was required then Sunil Tripathi would actually have been guilty of the Boston marathon bombings.

rayiner6• 13 years ago

What "massive public outrage?" A pitiful 400 people showed up to the San Francisco "Restore the 4th" protests.

tptacek15• 13 years ago

There was massive public outrage over the civil rights cases of the 50's and 60's, too.

joewallin2• 13 years ago

Chris, you are exactly right. This court should be dissolved.

methehack3• 13 years ago

Secret legal interpretations become part of the law itself and are tantamount to secret laws. How can we have secret laws? What does that even mean?

Further -- can someone tell me if this is a new thing? Is there any legal precedent to the law itself being secret?

tptacek15• 13 years ago

Sure. An analogous application of secret policy working within the framework of a law that delegates huge amounts of authority to the executive would be military strategy. Another would be FBI investigation priorities.

If you remove the "secret" constraint, but keep unilateral authority to do rulemaking without line-item approval by Congress, you can come up with zillions of examples.

ncallaway2• 13 years ago

I disagree, though I admit I'm doing so from a position of ignorance. Which means, I'm probably about to say something incorrect or misinformed. If you can clarify where I've gone off the rails I'd greatly appreciate it.

The key thing to understand is that the FISC court is not making law. It is interpreting the government's powers under existing law.

By my understanding, the same could be said about any court in the country. Rulings from the judicial branch are almost always matters of public record. Why aren't the rulings on the law from this court matters of public record?

This is a process the executive regularly engages in: it asks itself, is this activity legal?

This is where I think I fundamentally misunderstand you. Is the FISC a part of the executive branch? I understand it to be a part of the judicial branch. If it's part of the judicial branch it seems the executive isn't asking itself whether the activity is legal. If the FISC is a body of the executive branch then this makes much more sense to me.

tptacek15• 13 years ago

I'll take a stab:

No court in the US is meant to make law. All legislative powers under the Constitution are vested in a Congress of the United States.

What Rayiner is referring to is the inability of the FISA court to create precedent that binds on any other court in the country. The FISC can't overturn any law of Congress or rule it unconstitutional. Moreover, as an instrument of Congress operating outside of Article III, Congress can settle any dispute with FISC by abolishing the court. It cannot do that with other federal courts except in extreme circumstances.

DannyBee4• 13 years ago

FISC is an article 3 court created by congress with very specific jurisdiction (there is actually question what kind of article court it is, and wikipedia used to claim article 1, but the scholarly views i can find are that it's an article 3 court).

Like all article 3 courts that are not SCOTUS, this means it can only consider what congress has said it can.

Congress can and apparently did create a court whose entire job is to sit around and rule on a special type of search warrant (what used to be known as 501(f) petitions, they have some other name now, but are commonly known as "FISA warrants") The court rules, as promulgated, do not allow the release of opinions by the clerk, unless a judge/etc has ordered it. This is in sharp contrast to most article 3 courts, where opinions may not be "precedential" (though that distinction was mostly abolished), but you can still get them

However, it's not clear whether it is improper or not. It's certainly not a clear cut issue.

The real problem here is that the court was really created as a check on the executive branch, and it was expected, that any constitutional injury would get redressed through the normal process.

That is, gov takes you to normal federal court for a crime, in that court, they include the evidence obtained through FISA warrant, as well as basis for that warrant, and you challenge any constitutional injury there (through exclusion of evidence or whatever).

logn• 13 years ago

The FISC can't grant the executive any power it didn't otherwise have

The problem Americans are having is that we feel our inherent rights as human beings have been taken away, but having been done so in secret, we have no way to assert the government has acted inappropriately.

How hard would it have been to fight slavery if it had been conducted under top secret designation? How would Rosa Parks' actions been so influential if no one could know what she did and what the bus drivers/passengers were doing?

Edit:

Examples could go on and on. I think we should 'send a message' that it's not ok to cover up crime by stamping it Top Secret. Every person who classified something Top Secret should be investigated. If they're found to have classified a crime by the government, they should be imprisoned for life. Every top director in intelligence since '03 should be tried for crimes, along with Bush, Obama, and any other influential people in the administrations (such as Cheney).

I hope the next presidential election revolves solely around this issue. It's important enough to me that I'd vote purely based on it. Hopefully the Democrats and Republicans end up offering us candidates to address the 4th and 1st amendments which I think are clearly threatened here. The Republicans could be motivated to focus on this issue purely because they'd have the upper hand on Democrats, and the Democrats would have to address this to even have a chance at winning (at least, that's my hope).

noonespecial• 13 years ago

This is a process the executive regularly engages in: it asks itself, is this activity legal?

Here the disconnect lies: This activity is a proxy for looking back at the people and asking "is this what you wanted?". The proxy is no longer connected to the people, so the answer is invalid either way.

makomk2• 13 years ago

Without secret FISC rulings, you'd have secret NSA legal interpretations. The FISC can't grant the executive any power it didn't otherwise have--it exists instead as a check on the discretion the executive would otherwise have in using that power.

Okay, wait just one second. Are you fucking serious? For a start, both the executive and the FISA court are operating under the pretense that said court is actually an independent part of the judiciary and not merely the equivalent of the NSA's legal department, as you're arguing. This pretense allows them to issue blanket warrants like the leaked one for all Verizon call records and hold companies in contempt if they fail to comply. It also allows them to provide warrants for all kinds of activities that'd be outright unconstitutional by themselves. These are powers the executive doesn't legally have on its own.

Is it so unreasonable to call their bluff and demand that, if they're acting like a court and being treated like a court, we should get the same level of transparency we'd expect from any other court?

rayiner6• 13 years ago

It also allows them to provide warrants for all kinds of activities that'd be outright unconstitutional by themselves.

The FISA court grants warrants for things that would otherwise be Constitutional without a warrant. Surveillance of foreign agents does not require a warrant. Collection of meta-data does not require a warrant. Collection of records from third parties probably does not require a warrant, under existing precedent.

The Verizon call records example is a good one. See Smith v. Maryland: http://en.wikipedia.org/wiki/Smith_v._Maryland (1979). That case decided that the government did not need a warrant to find what numbers were dialed by someone. "In the Majority opinion, Justice Blackmun rejected the idea that the installation and use of a pen registry constitutes a violation of the 'legitimate expectation of privacy' since the numbers would be available to and recorded by the phone company anyway."

Verizon's call records are not only not private to you personally, since Verizon can see them, but not even your information to begin with, since they were generated by Verizon and not you. It's a totally reasonable application of the existing precedent to say that the NSA can collect Verizon's call records without a warrant.

For better or worse, we have a 4th amendment that: 1) does not apply to foreigners; and 2) does not apply to information you voluntarily expose to a third party (like bank records or phone records). This gives the government a wide latitude to collect information without running afoul of the 4th amendment. The purpose of FISA was to insert the FISC as a check on this discretion. The FISC does not seem to be a very effective check, but it's not designed to let the executive do things that it could not otherwise do.

jarrett3• 13 years ago

Nothing forces the government, or any other entity, to publicize its interpretation of law until it is challenged in public court.

One of the key objections raised during this controversy is that perhaps the executive should be forced to reveal its interpretation of the law. What public policy objective is served by keeping this secret? Bear in mind, we're not talking about disclosing detailed information about US military or intelligence operations. It's not something like "John Smith is an undercover agent in Country X," or "The NSA now has a tap on a router at such and such location." Rather, we're only talking about disclosing the executive's opinion as to what the law means. What danger is posed by simply publishing theories as to a law's meaning? Would enemies really derive any advantage from knowing this?

The gist of the DOJ's argument is sound. The key thing to understand is that the FISC court is not making law.

This is partially true. The court is not writing statutes. However, they are (presumably) creating a body of case law. And case law is law. Yes, it is merely an elaboration on statutes and prior caselaw. But it is new law, nonetheless, in the sense that it decides legal questions which previously were undecided.

Just as one should be concerned with the laws created by SCOTUS, one should be concerned with the laws created by the FISA court.

dllthomas2• 13 years ago

Would enemies really derive any advantage from knowing this?

Probably, yes. All sorts of things leak information, and "we don't do X" seems like it could easily be useful. That said, the question arises how much whatever marginal security against foreign threats actually means to us, as weighed against cost and freedom and good governance (which are partly a matter of security against other classes of threat).

dragonwriter4• 13 years ago

However, they are (presumably) creating a body of case law. And case law is law.

Are they? Non-appellate court decisions, except in that they are binding in future disputes between the same parties under the principle or res judicata, aren't binding on future courts (not different courts, nor even the same court.) Appellate court decisions are binding on lower courts subject that court of appeals, but its not clear to me that, even with the review relationship they have, that the relationship between the FISC and the FISCR is one of lower court and appellate court such that the decisions of the latter are precedent binding on the latter. And even if it was, IIRC, only published decisions generally serve as binding precedent.

So I'd be inclined to say that the FISC almost certainly doesn't, and the FISCR probably also doesn't, really create case law in any substantive sense.

joewallin2• 13 years ago

When you interpret law in an expansive manner, allowing the government to spy on people, you create law. It ought to be public. All of it.

kabdib• 13 years ago

The gist of the DOJ's argument is sound

"Collect everything" doesn't pass the giggle test.

They're very definitely making law. They're very definitely grabbing things (metadata, probably content, arguably power) that Congress didn't want them to have, or it would have clearly said so.

That this is all secret makes it even more evil, to the extent that if we the public have lost trust in these people, they should simply be shut down because we can otherwise not be sure. Dismantle a bunch of data centers, shred many, many drives and tapes, and say "never again."

If the prophylactic solution is too draconian, then they need to provably come clean about what they have been up to.

lettergram• 13 years ago

It seems that the reason for the ACLU's request being declined is jurisprudence, which is a weak argument. The court did not directly explain why it is unreasonable to request such information (claiming national security doesn't necessarily mean it is so). Since 2007 and 2008 many things have come to light, including how deep their operations go and which companies (in part) are being used for surveillance. Therefore more evidence has come to light and the ACLU is pretty much just being dismissed in my opinion without justification or at least without a valid reason (even if it is justified).

Legally, I think the court is "sound," but that does not mean they could not throw the ACLU a bone by just releasing the most basic of their law interpretations (since we already know them).

maxk42• 13 years ago

A law that cannot be known is no law at all.

alan_cx• 13 years ago

Erm, so the US is a democracy, right? So, all these muppets in government are servants of the US people, right? So, who exactly are they to tell Americans what they have the right to know and not know?

ferdo7• 13 years ago

Erm, so the US is a democracy, right?

It was supposed to be a Republic. It's now an oligarchy.

tptacek15• 13 years ago

Nobody. If you disagree, organize their ouster. Just be warned that by all appearances most Americans don't see this as a voting issue.

anaptdemise• 13 years ago

So voter turn out in 2012 was around 57% or so and Obama had 50%-51% of the popular vote. So, basically 25% of America decides the election ignoring the electoral collage which reduces it to 270 people, not all of which are required to vote with their districts popular vote. This pretty much marginalizes the middle ground voter.

So yeah... what can you do.

The only way I see any change coming is if you can get around 10% of congress recalled in their given states. Unless people are upset enough to do that, you wont see any change. Even if incumbents are thrown out during normal election cycles, congress doesn't seem to get the point. As a whole their approval rating is <15% which is terrible. But their individual approval rating amongst their own constituents is much much higher... There is something wrong with that logic. How do you convince voters that they are part of the problem.

ganeumann2• 13 years ago

The DOJ's brief says on p. 16, footnote 5: "Sixteen members of the House of Representatives as amici curiae raise two concerns regarding information sharing between the Executive Branch and Congress: (1) that because much of the information they receive is classified, they cannot discuss it in congressional debate..."

I had thought that the Constitution guaranteed Congress the right to say anything when they are talking aboiut legislation ("...and for any Speech or Debate in either House, they shall not be questioned in any other Place.", the Speech or Debate clause.) Any Constitutional lawyers here? How do these two things jibe?

dangrossman• 13 years ago

They're talking about someone in the executive branch sharing information with someone in congress. Protections the legislators have on their speech don't apply to the people speaking TO them.

IANAL, just speculating.

Zigurd• 13 years ago

You might think so, but that immunity excludes felonies, and felonies are cheap these days.

ganeumann2• 13 years ago

Does it? That's not how I read it, but I'm not a Constitutional Lawyer. Here's the full clause

"The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

I guess the semicolon can be interpreted in two ways, although I interpret the Speech or Debate clause as being only after the semicolon; the use of "and for any..." also does not seem to exclude felonies. Logically the clause would also seem to lose any bite it might have if things the legislature declared a felony were then excluded from Speech or Debate. But again, IANACL.

JulianMorrison• 13 years ago

Somebody hook a generator to Kafka, he's probably putting out enough RPMs to power New York.

a3n2• 13 years ago

"The Justice Department filing also, however, suggests the Obama administration is taking steps to make the court more transparent."

Wait, it's a court. How does the executive branch have any sway over how a court manages itself? Unless it's a captive court ...

alttab• 13 years ago

Or a secret court

splrb• 13 years ago

It is inconceivable that a democratic society ruled by law would even have a notion of secret law, secret courts or secret interpretations of law as it is inconceivable that I would ever get a constitutionally guaranteed fair hearing. We are falling down the rabbit hole.

Justice Dept. defends secret rulings in new spy court filing

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