Justice Department Fights Release Of Secret Court Opinion On Law That Underpins PRISM Program

[DirkGently]

A 2011 Foreign Intelligence Surveillance Court ruling found the U.S. government had unconstitutionally overreached in its use of a section of the Foreign Intelligence Surveillance Act. The National Security Agency uses the same section to justify its PRISM online data collection program. But that court opinion must remain secret, the Justice Department says, to avoid being "misleading to the public."

The DOJ was responding to a lawsuit filed last year by the Electronic Frontier Foundation seeking the release of a 2011 court opinion that found the government had violated the Constitution and circumvented FISA, the law that is supposed to protect Americans from surveillance aimed at foreigners.

[snip]

The part of the FISA law addressed in the opinion in question, Section 702, is the same one the NSA is now using to scoop up email and social media records through its PRISM program.

But the court that released the opinion under dispute is no ordinary legal body. Made up of federal judges on loan from other courts, FISC conducts its highly classified business in secret. Its rulings, too, are classified -- which means Americans don't know how the law governing surveillance is being interpreted.

http://www.huffingtonpost.com/2013/06/07/justice-department-prism_n_3405101.html

Here's the ball being hidden in the all frantic spinning that there's nothing to see here.

The administration -- this one, not the last one -- has already been found to have broken the law that it is using in the secret PRISM program. Of course, we didn't get to see the details of what was done wrong, because all of that is ... wait for it ... also a "secret."

There is a FISA court ruling explaining how it did that, and presumably laying out not only what was done wrong, but what can legally be done going forward. The administration doubtless contends that the bad stuff all started under Bush, and that it's now complying with that order.

But we don't know what that compliance means, because DOJ is fighting tooth and nail not to disclose the ruling that found it was behaving illegally in the first place. In fact, (the article goes on to say) the administration has crafted an argument that NO COURT has the authority to unseal the FISA ruling about how it was breaking the law. In other words, we should never know what they were doing wrong in the first place, and should now simply trust that they've stopped.

Therefore, examining what PRISM is collecting now raises (re-raises, if we must) the question of the rules under which the vast electronic surveillance program is actually operating. That's the actual issue. Not that we have surveillance, not that it's been ruled on by FISA courts, but how the administration is complying with a secret finding that it was NOT complying with the law in the continually expanding surveillance being conducted. And they don't want to tell how they're complying, or let anyone examine their logic.

So, no, the entire issue is not a Republican plot, or Greenwald being a Libertarian hater, or "Cheerios racists," or just the rantings of a disgruntled temp worker. But Greenwald's piece IS just tangential to the real problem. The big panic in the administration is that he's tugging on the corner of a very uncomfortable blanket, under which resides a classically Bush-esque regime of secret interpretations of the laws which are supposed to protect us from unconstitutional intrusions, but which can also easily hide government overreach, on the theory that even talking about it threatens national security.

All of this about the details of how it's being done now, while offered to "debunk" the recent stories, are things they did not want to discuss at all, even though it's all presumably been tweaked because it was illegal in the first place. So it's a bit much to archly dismiss the new reporting as non-news, given it all relates to what has been, at some point, an illegal government program that has supposedly been secretly corrected to comply with a secret court ruling, that the administration is currently arguing we should never see.

The key problem remains the one we all reacted to under Bush, which is that the executive cannot self-police domestic surveillance or other constitutionally sensitive programs under the idea that the existence of worldwide terrorism trumps all the rules.

As long as the entire legality of what's being done is secret, we can never tell whether the secrets are being kept for "national security" as claimed, or simply to cover up wrongdoing.

Because secrecy conveniently accomplishes both.

[ProSense]

1. ACLU: DOJ Tells Court It's Reconsidering Secrecy Surrounding Patriot Act's Spying Powers

DOJ Tells Court It's Reconsidering Secrecy Surrounding Patriot Act's Spying Powers

By Alexander Abdo

With a filing due next week in an ACLU Freedom of Information Act lawsuit, the Justice Department today asked a federal judge for time to reconsider its position on whether it will continue seeking to withhold documents related to its secret interpretation of Section 215 of the Patriot Act. That provision, which allows the government to acquire "any tangible thing" relevant to a foreign-intelligence or terrorism investigation, was the basis for the secret FISA Court order revealed this week by The Guardian telling Verizon to turn over troves of phone call data.

Until now, the government has taken the position that what it thinks it's allowed to do under Section 215 should stay hidden from the public. This is unacceptable, because it's impossible to debate the wisdom of a law if the public doesn't know how the government interprets it. But today, following last night's release of classified aspects of the NSA's surveillance practices by Director of National Intelligence James Clapper, the government asked the court for 30 days to consider whether to change its position in our FOIA case. Here's an excerpt from the DOJ letter to the court:

In light of the DNI's decision to declassify certain previously classified information, the Government requires time to consider what effect, if any, the DNI's decision has on the classification of information in some of the withheld documents still at issue in this case.

We take this as an encouraging sign that the government is considering handing over at least some of the information it has thus far declined to disclose – most importantly, Justice Department legal opinions and FISA Court rulings about Section 215.

http://www.aclu.org/blog/national-security/doj-tells-court-its-reconsidering-secrecy-surrounding-patriot-acts-spying

Yesterday:

Obama Administration Declassifies Details On “PRISM,” Blasts “Reckless” Media And Leakers.
http://www.democraticunderground.com/10022972852

[DirkGently]

2. Exactly. Maybe the Greenwald / Guardian reporting pushed the administration

into becoming more transparent. Don't think that FISA order on the unconstitutional circumvention of the PRISM law has been released though, has it?

[JDPriestly]

17. Please! For once, please be honest just this once.

The Obama administration appears to have acted wrongly and violated the Constitution. And he is going to have to change a lot to ever make this right. May be impossible.

Of course, Obama may really have a good explanation or excuse. But, thus far, it doesn't seem likely.

This is one of those moments of truth for the Obama administration.

[ProSense]

22. You are

The Obama administration appears to have acted wrongly and violated the Constitution. And he is going to have to change a lot to ever make this right. May be impossible.

Of course, Obama may really have a good explanation or excuse. But, thus far, it doesn't seem likely.

This is one of those moments of truth for the Obama administration.

...implying thtat the President lied: http://www.democraticunderground.com/10022965452

If that is the case, he has opened himself up for impeachment.
http://www.democraticunderground.com/10022981753

[JDPriestly]

24. Someone is lying. We shall see who it is.

I don't know. And Obama may not understand what is going on. I happen to like Obama and want to give him the benefit of the doubt. But these programs (if you read the Atlantic article, you will understand) are a great threat to our democracy.

These programs spell the end of our representative government if not now, in the future. Because these programs set aside the guarantees of the Bill of Rights, each program setting aside specific rights that are part of a total strategy to insure our freedom and democracy.

Sorry. But this just happens to be the truth.

Obama can save our democracy if he has the courage to do it. He can shut down some of these programs or open them up completely to public scrutiny and let the people decide. Government of, for and by the people. That is what democracy is. And this kind of secret surveillance and surreptitious overreaching compilation of information about citizens makes government of, for an by the people impossible.

These programs concentrate too much power in the executive. It isn't about Obama. It is about the executive and its role in our government.

[DirkGently]

30. Not lying, exactly. Arguing that he doesn't have to say.

What's really weird is that the lawbreaking the administration appears to be protecting is likely Bush's.

That raises the question of whether Obama lacks the power to oppose the Bush acolytes in his administration -- even after all these years.

Or whether he just doesn't want to.

[DirkGently]

41. Well we

know the law under which PRISM operates was violated in 2011.

What we don't know is how it was violated, or how it's been fixed going forward.

Not lies, necessarily. Lack of information.

[DirkGently]

45. I feel like asking her / them that too, sometimes.

Think it'll work?

[nashville_brook]

3. if loyalists would spend more time focusing on the issue instead of the partisanship

this secret surveillance matter could be cleared up stat. they'd apparently rather join the ranks of Karl Rove and Ari Fleischer in cheerleading the surveillance program instead of working to change it.

2014 is a long ways away, and it's not the GOP is going to suddenly become the party of protecting liberty. there's really nothing to lose.

so what's the problem? is it that the party loyalists simply can't take ANY criticism of the administration?

or...are they so blinded by the rash of RW glurge/pseudo scandals that they can no longer see a real problem when it crops up?

[DirkGently]

4. The bottom line is it's a real issue, and not a small one.

We go 'round and 'round with the mentality that everything goes through the Obama's Political Well Being filter before the actual truth of the matter is considered.

But how does that really help us? Anyone can engage in partisan poo-flinging. The better party is the one that actually stands for something, and I've been proud of Dems standing up to the insane Executive power grab Bush put us all through.

If we turn around now and pretend it's all okay because ... political expediency (?) where are we? How does it get fixed?

We're supposed to be better than that.

[nashville_brook]

6. poo-flinging helps no one, AND it reveals how disingenuous/unprincipled the flingers are

really? you're going to applaud the Bush administration's secret kangaroo courts just b/c Obama is in charge now?

folks should be using some of that so-called power we have from getting him re-elected to getting some of that change he promised. that's what you do with political capital. you use it to affect change. as long as it just sits in your pocket it does no one any good.

[DirkGently]

7. One would think now is the time to correct it.

For whatever reason, the administration has decided to preserve the part of the Bush Doctrine that shields illegal conduct under the guise of national security. Maybe they think they have these "safeguards" in place. But they're fooling themselves if they think secret self-policing, convenient though it may be, can continue.

[sabrina 1]

25. Those same partisans made their own problems when they agreed with Obama that

we should 'move forward' from war crimes, and when he said, incredibly, that there were no crimes committed by Wall St. criminals, only 'immorality'.

Had they supported the prosecution of those criminals, Republicans would be very busy right now trying to defend themselves from all the information that would be revealed during the investigations. They insisted that if the Obama administration were to conduct investigations we would be risking being accused of doing it for political reasons. We told them we would be accused of that anyhow, that there would be no thanks for letting them off the hook. We were right of course and now they are complaining about Republicans doing what Republicans do regardless of how nice we are to them.

But partisanship blinds people. I know, I used to be that way until not so long ago and I realize I enabled such awful policies as ending Glass/Steagal and the Welfare bill among other things. I did have pricks of conscience as I tried to defend 'my party', but swept them aside in the zeal not to allow Republicans win any points at all.

Thankfully I am awake now and will never remain silent when our rights are threatened no matter who is doing it.

[DirkGently]

33. Someone convinced him the cure would be too painful.

Last edited Mon Jun 10, 2013, 04:12 PM - Edit history (1)

... or perhaps just too inconvenient. How can you make use of the CIA, if you've just jailed some of them for "following orders?"

How can you count on Wall Street's support, if you charge them with fraud and theft?

How can you defend against charges of being weak on "terror," if you dismantle the huge apparatus we put into place under the theory we could somehow prevent it?

And now we look around, and so little has changed. The economy struggles back to its feet, because people continue to work and struggle, no matter how unlevel the playing field. Wars end, eventually, and we forget what we claimed they would accomplish.

People are busy surviving, and have little time to look around and question those who make it more difficult.

[Laelth]

44. Beautifully said. n/t

-Laelth

[rhett o rick]

5. k&r thanks for posting.

[GoneFishin]

8. They are using pretzel logic which they know will be easily dissected if they present their

legal interpretations out in the open. It is obvious that they are afraid of the sunlight.

[nashville_brook]

9. they've got a week of news cycles to address it...

will be interesting to see how it's treated.

[DirkGently]

11. This is the inescapable problem.

No one can self-police abuse of power. The entire idea is ridiculous, which is why it came from the Bush administration. They rationalized, quite obviously in bad faith, that national security gives the executive near-unlimited power, including the power to decide that even any questions about its own wrongdoing could be classified.

That's the core battle that's been going on since Bush. Does anyone get to see how the Executive is governing itself on issues of Executive power and Constitutional rights?

Bush said, "No." Now the administration is saying the same thing.

It is an issue, it's not something we have settled before, and this leak story, whatever it's worth as a description of the actual programs, has raised the question once again. Does the executive get to, not only conduct its business in secret, but also tell us we may not even ask its interpretation of what is legal and what is not?

And it looks like they may now tell us what they think is legal, because they want to refute the specifics in the story.

How they go about doing that will be another story.

[GoneFishin]

13. This provides a possible explanation for why they are so vengeful against whistleblowers.

They could hide this stuff for decades in the name of national security if the occasional pesky whistleblower didn't tell the public the truth.

[JDPriestly]

19. Thank you. You explained it so beautifully.

That is precisely the issue. Do we have an imperial presidency?

Or do we have self-government of the people, by the people and for the people?

The two kinds of government are incompatible.

If the executive has the authority to monitor all our communications, whether or not they monitor the content of the communications, it has imperial authority. We have a monarch or are in the process of shifting from democracy to a monarchy, a dictatorship.

Either freedom of information is from the government to us, and privacy is ours to protect from the government, or we are not a democracy.

We cannot claim to have self-government if our government can enjoy privacy in its conduct and communications, but we citizens cannot.

[DirkGently]

32. This is how the frog boils.

It all starts with good intentions. Bush (and more specifically, Cheney) seized the "opportunity" afforded by 9/11 to put into place the tools and legal infrastructure for authoritarian schemes and processes on the basis of fear. Fear of terrorism in this case. But there's always something. Foreigners, foreign ideology, strange religions.

No mustaches are twisted. No black flags hoisted. But we go along, for any of number of reasons. Party loyalty. A foolish belief that if you put good people into power, no process, no matter how inherently corrupt, can do us harm.

But that's not the way human beings or governments work. Power that can be abused, will be abused.

It's the process that cannot be trusted, no matter we believe is overseeing it.

[neverforget]

10. Secret opinions on public laws. What could possibly go wrong?

Gotta love the circular thinking!

[DirkGently]

14. Not exactly a sky high bar we're setting here.

No, you can't not tell us how you've stopped breaking the law. We noticed earlier that privilege was, if not created to be abused, created with an appalling lack of concern for the likelihood of such abuse. Bush didn't want us looking at what he was doing, because what he was doing was illegal.

Maybe Obama thinks he's cleaned it up. His intentions are not the issue. The issue is that he wants to keep the privilege of not telling us what cleaning it up means. That's a process that cannot be trusted.

[marshall]

12. The unwashed masses are too ignorant to understand it

I guess that's what "misleading to the public" means.

[think]

15. Classify the crimes and there is no crime to speak of....

[DirkGently]

34. Classic response of power to a challenge:

... change the rules.

Remember when Cheney tried to dismantle the department in charge of inspecting his office space?

[think]

36. I missed that Cheney exploit.

Tricky Dick was pretty good at changing the rules to fit his theme. If someone wanted him to give account for his actions he always had an out to prevent any over site....

[DirkGently]

38. Ahhh ... the memories of Cheney's view of Executive Power.

Fresher than I'd like them to be.

WASHINGTON — Vice President Dick Cheney and congressional Democrats are sparring over the vice president's refusal to comply with a 2003 presidential executive order that requires all agencies and the executive branch to protect classified material.

(snip)

In a letter to Cheney Thursday, House Oversight and Government Reform Committee Chairman Henry Waxman, D-Calif., questioned "both the legality and wisdom" of the vice president claiming an exemption from the order, noting recent controversies involving members of Cheney's staff and classified information.

(snip)


Cheney's office says it's exempt from Bush's executive order because it's not an entity within the executive branch. The order, issued in March 2003, directed all agencies and executive branch offices to report on their classified and non-classified files to the National Archives and Records Administration.

(snip)

Meanwhile, Cheney's aides attempted to kill the oversight office.

J. Leonard Williams, director of the oversight office, told Waxman's staffers that Cheney's office urged an interagency committee to abolish the Information Security Oversight Office and eliminate its ability to appeal any dispute to the attorney general.

http://www.mcclatchydc.com/2007/06/21/v-print/17210/cheney-records-law-doesnt-affect.html

[kenny blankenship]

16. So basically Obama is doing something too "out there" for even his STAR CHAMBER to swallow

and his Justice Dept is trying to tell the Court to dummy up about it???

Fuck, now I've heard it all.


Nixon to Judge Sirica, "Sir, we have a difference of opinion about my private, personal tapes that I can't allow you to go public with."

[DirkGently]

29. We don't know. Could be the lawbreaking began under Bush

... and Obama believes he's "cleaned it up." That's nice, if that's the way it went, but I don't think he claim that and simultaneously follow the Bush Doctrine that no one can review the rulings on the legality of the program.

It's a very seductive conceit. "We're doing it right, but we can't tell you how."

[truedelphi]

18. Better watch it there, Dirk Gently. Janet

Napitolano stated yesterday that those of us who approve of the government don't need to worry - only people who question authority will need to think about what may happen next. Today your phone data is held in computer storage; tomorrow, that drone might be giving you a buzz cut.

As for me, all of this has given me a new lease on life - I plan on selling life insurance to my fellow Americans who think those drones might be hastening their demise.

[JDPriestly]

20. Brilliant! Might as well profit from the misery of others.

I take it you feel pretty safe. Interesting.

[truedelphi]

21. That is the name of the game here in the USA.

America, been fucking folks over for over 290 years.

Ya either gotta kill the heathen Injuns, or be killed.

And right now, anyone who questions authority has about as much right to a decent life as King Philip did when the Massachusetts militia wanted to make their Pilgrim-ish neighborhood safe for their women and children.

It all works out quite well for most people who decide to look after their own interests. This is a country where most people are more concerned about what Lindsey Lohan is doing right now, than anything relating to PRISM or the fact that the entire nation and all its institutions are in the toilet.

I mean, if someone in the WH had pulled half the stunts that Obama has pulled in the last five years, and done them some forty yeas ago, my parents' generation would have had him impeached so fast that no one in Vegas would have had a chance to even place bets on it. I mean, letting the bankers handle the Bailouts, with the most manipulative of those dickwads then getting the top spot at Treasury? And that Treasury dickwad then goes on to lie to Congress (an impeachable offense, right now one Geithner could still be held accountable for,) while Bernanke "loans" out over 15 trillions of dollars to his buddies on Wall Street. So that the Social Security Fund needs to be CPI cut and MediCare is slapped with cutbacks, cuz it is only those pathetic OLD PEOPLE on MediCare and cute little games played every day of the week etc in order to make up for the fact that over 4.7 trillions of those dollars will never be repaid.

But this is America inside The Big Sleep. Most people who have "made it" will be quite content to let Snowden get renditioned, because:
[h2][font color=blue]
REMEMBER NINE ELEVEN - AND DON'T WE NEED TO BE SAFE?

And REMEMBER BOSTON - AND HOW THAT BOMB WENT OFF!

And MARTIAL LAW IN THE USA MEANS THE POLICE BRING YOUR FAMILY MILK FOR FREE!
[/h2][/font color=blue]

and let's face it, the rest of the 47 percent of us are going to what? Walk around with Occupy on the streets of NYC and get thrown in jail and find out that an Order of Protection has been served on us for our protesting, which means that if we protest a second time, we could be facing 15 years?

[sabrina 1]

26. Lol, that is capitalism at its finest! Congratulations on turning lemons into lemonade.

Did Napolitano really say that? Seriously? Now I'm really worried about what they might do with that 'metadata' they have stored! I might be buying some of that insurance you're selling.

How very Ari Fleischerish of her! 'They better watch what they say'.

Ari is very pleased with this program btw, he said so on Anderson Cooper this week, praised the President 'for protecting the American people'. Well, you can understand that, they have been vindicated, by Democrats.

[DirkGently]

27. Tending your own garden, eh?

Can't say I blame you. Things may well have to get worse before they get better.

[DirkGently]

31. Or we could sell "NSA-proof" e-mail software.

No one will ever know whether it works or not, because all those records are SEALED!

[truedelphi]

39. And if we do know it works -

It's curtains!

Anyway thanks for my laugh of the day.

[sabrina 1]

23. If they have nothing to hide, they have nothing to worry about.

Or does that not apply to the the government? Secret courts, secret rulings, I was so hoping to see the end of all of this in the name of 'terror' when we saw Bush's plane flying away from the WH.

[DirkGently]

28. Another failure to to refute the Bush Doctrine

They went wild with their theories of an unlimited executive -- actually Cheney's pet theory -- but apparently total secrecy and self-policing has been too seductive to reject.

[woo me with science]

35. Heh.

Perfect.

[truedelphi]

40. I remember all the photos that we saw as

Last edited Mon Jun 10, 2013, 04:25 PM - Edit history (1)

Mute but colorful witness to the one million killed in Iraq - and I think, if we had any "patriots" in our government, Cheney, Rumsfeld, Ashcroft and Bush would have been indicted. The one photo that time has never been able to dim, for me anyway, was of that little three eyar old, dressed in the most pretty and delicious outfit any parent wold have their daughter wear for an outing, and she is covered in the blood of her parents, as our troops shot them dead when they didn't respond to their checkpoint demands. And if that isn't enough, the big 200 lb Marines are pointing their rifles at her.

In other news, Sibel Edmond has officially given up. She sees no point to spending time in jail, plaguing Congressional folks with her pleas, writing, doing interviews etc. The Big Corporation- Fellating machinery that is our government could care less.

In still other news, some right wing websites are saying that if Holder refuses to respond to subpenas, then DOJ should be defunded.

And sadly, I think they have it right. If an Executive Branch or Judicial Branch will not respond to the legislative branch, (and that is ironic, isn't it, as the Justice Department surely knows the law on this, and even advised Obama, Summer of 2009, to say he could not be instrumental in writing the ACA on account of the separation of powers, and that being Congress's job,) then why have a Department of Justice?

[nashville_brook]

46. +1 with a deep sigh

[Laelth]

42. Mr. Holder has been putting in a lot of overtime.

k&r for exposure.

-Laelth

[WillyT]

43. K & R !!!