DOJ Trying To Hide Secret Interpretations Of The Law Because You'd All DIE!!!!

Legal Issues

from the secret-laws dept

Thu, Apr 4th 2013 12:05pm — Mike Masnick

It's kind of sad that anyone could possibly think that it's okay for the government to have secret interpretations of the law in a free and open society. "The law" is more than just the legislation itself, but the collection of caselaw and interpretations, combined with the legislation, that make up the overall "law." If some of those interpretations are kept secret, then how can the public obey the law? The answer is that they can't -- which is why secret interpretations shouldn't be allowed. The Justice Department, however, prefers to keep some things secret, and it's asking the court to dismiss a lawsuit filed by the EFF seeking to find out how the Foreign Intelligence Surveillance Court is interpreting parts of the FISA Amendments Act, after it was revealed (late on a Friday) that the court found at least one situation in which the feds collected info in violation of the 4th Amendment.

The EFF figured the public should know the details. The DOJ on the other hand... would rather the public stay in the dark. The DOJ actually suggests that merely revealing the fact that they got slapped down by the FISC provides enough "balance."

Last summer, in an effort to strike the right balance between government transparency and the protection of critical intelligence activities, the government declassified four statements concerning its activities pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) Amendments Act of 2008. Not content with that disclosure, Electronic Frontier Foundation (“EFF” or “Plaintiff”) submitted a Freedom of Information Act (“FOIA”) request seeking additional information related to two of the declassified statements, specifically, that on at least one occasion the Foreign Intelligence Surveillance Court (“FISC”) “held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment” and that “on at least one occasion the FISA Court has reached th[e ] conclusion” that “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law.”

And thus, we should be satisfied with that and want no more. Also, you don't want to know what kind of hell would break loose if the DOJ had to reveal how the law was actually interpreted. I mean, we'd all die or something very close to it, judging by the DOJ's language.

The government has determined that disclosure of the information withheld from Plaintiff could result in exceptionally grave and serious damage to the national security. Plaintiff obviously cannot contend otherwise. The Court accordingly should defer to the government’s determination in this case, uphold the Department’s withholdings, and grant this motion.

Basically, we've determined that you're all better off not knowing this information, and you should trust us because it's not like we have any incentives to lie (though, of course, we do). Also: boo!

Thankfully, more people are realizing just how ridiculous this is. The Washington Post has put out an editorial slamming the DOJ for its position:

Yet, as the amicus brief points out, the OLC’s opinions aren’t some intermediary step toward establishing the final legal interpretations for the executive branch. In general, they are the final legal interpretations for the executive branch. The FBI could choose to exercise the authority that the OLC said it had — or not — but Congress, the judiciary and the public at large all deserve to know what the executive branch thinks it can do, once it issues a conclusive opinion.

In other words, it's not right that the government can determine its own secret interpretations of the law, and it's time for the courts to put a stop to this.

Eff Fisa 1 (PDF)Eff Fisa 1 (Text)

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Filed Under: doj, fisa, fisc, secret laws, spying, surveillance
Companies: eff

27 Comments

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Ninja (profile), 4 Apr 2013 @ 11:32am

In other words, it's not right that the government can determine its own secret interpretations of the law, and it's already past the time for the courts to put a stop to this.

Fixed.

I'm glad the scare tactics are getting worn out. It's like the boy that cries wolf when there is none and when the wolf come nobody will help him. When there's a real threat people will not believe the Govt anymore...
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crade (profile), 4 Apr 2013 @ 12:21pm

Probably the reason for the grave danger to all our lives is because we'd all kill ouselves trying to liberate the nation if we knew how bad if the government were more transparent this and it's other actions.
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sophisticatedjanedoe (profile), 4 Apr 2013 @ 12:29pm

Basically DOJ is pleading the Fifth...
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Anonymous Coward, 4 Apr 2013 @ 12:32pm

Re:
More than that, they're cowardly bullies who have just found out that the public are getting fed up of their shit.

I wonder if John Steele will have a shoe-in job when Judge Wright finally gets through with him?
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Jeff (profile), 4 Apr 2013 @ 12:40pm

Re: Re:
Oh he'll have a shoe-in alright... a shoe in his ass is more likely...
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silverscarcat (profile), 4 Apr 2013 @ 12:53pm

Re:
People still believe the government?
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Anonymous Coward, 4 Apr 2013 @ 1:02pm

I think they got it wrong
"The government has determined that disclosure of the information withheld from Plaintiff could result in exceptionally grave and serious damage to the national security. Plaintiff obviously cannot contend otherwise."

Even if the government determines something would seriously damage national security, it would seriously damage this countries morals not to.

This is supposed to be a country "of the people, by the people, and for the people". In other words if you are doing harm to "the people" or their rights, you're doing more to damage the country than explaining how you interpret the law ever could.
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[citation needed or GTFO], 4 Apr 2013 @ 1:07pm

Re:
Unfortunately, once the threat has come to pass, the government will just push the blame to anyone else except themselves. They'll whine that they need more power so it won't happen again and they'll somehow give themselves that power, thus completing the never-ending loophole of self-responsibility.
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Anonymous Coward, 4 Apr 2013 @ 1:32pm

Did you say "boo" or "boo-urns"?
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Anonymous Coward, 4 Apr 2013 @ 1:37pm

Re:
More likely, the ones in grave danger are the government officials who have allowed this to happen.
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Beech, 4 Apr 2013 @ 1:42pm

I'm guessing that if, by some miracle, the court rules that the government has to explain how it interprets the law they'll just end up pleading executive privilege on it.

What REALLY bothers me is the line right after the "grave danger" sentence, "Plaintiff obviously cannot contend otherwise." What!? How is that at all obvious? I would say that the government MUST explain how it interprets the laws of the land, and NOT doing so may lead to grave and serious danger, and maybe terrorism and cyber-bulling. Government OBVIOUSLY cannot contend otherwise. If the argument works in any given direction, then it is a terrible argument.

Imagine if Prenda and Co saw this filing before their latest hearing with Judge Wright. Instead of pleading the fifth, they could have just said that answering any questions could lead to grave and serious danger and the judge obviously cannot contend otherwise.
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gnudist, 4 Apr 2013 @ 1:43pm

Ignorance of the law
Seems a pretty good excuse for not following it these days what with ththe number of them AND secret interpretations on top!

Rule of law is important, but first the rules must be reasonable and known.
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Bengie, 4 Apr 2013 @ 1:59pm

Take my chances
Chance of dying from knowing the law: slim
Chance of dying from government having secret laws: very high, eventually.
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Jericho, 4 Apr 2013 @ 2:06pm

And they thought the Evil Bush was bad...
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Uriel-238 (profile), 4 Apr 2013 @ 2:06pm

When we lose confidence in the Department of justice to ...well... see justice served, that essentially makes the jurisdiction of the courts questionable.

Sure, they have jurisdiction by the authority of force, but so does North Korea. So do territories run by radical warlords. So did the Soviet Union. What makes a democratic court fair and reasonable is only by the confidence of the people.

Since the Dotcom affair it become more and more evident that the court system doesn't serve justice. It serves money and power. It opposes anything that is deemed subversive by money and power, whether crime is committed or not.

And the consequence of this is that anyone and everyone processed by the DoJ are now political victims. Those in prisons are political prisoners, whether their crimes were politically motivated, or committed atrocities for pleasure.

This is a consequence of not having a working justice system: the state can't tell criminals from crazies from the counter-culturists.
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Jericho, 4 Apr 2013 @ 2:10pm

Re:
Well said sir.

In the 70's we would have called it a Police State.
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Uriel-238 (profile), 4 Apr 2013 @ 2:23pm

To Hell with the ensurance that policymakers can have open and frank discussions. The Nixon administration burned that bridge, and the Bush administration demonstrated that government can't be trusted with the privilege of confidence.

Situations like this are verifying what history has already taught us: open and frank discussions that are kept in confidence tend not to be good for the public, since the confidence is more necessary for keeping up appearances than they are for actually promoting beneficial policy.

And since Law Enforcement seems to be more interested in power than service, it might serve us to take away their surveillance privileges for a while, since they seem to using it less about actually stopping crime than they are for chilling counter-cultures and other activities subversive to the mainstream.
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DCX2, 4 Apr 2013 @ 2:29pm

Re:
About the best explanation I can come up with is "plaintiff doesn't know shit so they can't say one way or the other whether this will hurt national security."
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John Fenderson (profile), 4 Apr 2013 @ 2:34pm

Re: Ignorance of the law
If the rules aren't reasonable and known, then you don't really have rule of law. You have tyranny.
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madasahatter (profile), 4 Apr 2013 @ 4:34pm

Re: Re: Ignorance of the law
Agreed. Many tyrannical states have relied upon overly complex laws and regulations that can be used to ensnare anyone the government deems dangerous. One US defence attorney wrote about this stating that average, law-abiding US citizen commits about 3 felonies everyday because of the convoluted nature of US laws and regulations. The only saving grace for most is they are too unimportant to prosecute - no headlines possible.
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special-interesting (profile), 4 Apr 2013 @ 5:38pm

Its new that they don't want to specify the motus operandi? Sounds more like a crime in progress.

I remember (seems like ancient history already) when Prendaa started to act funny after someone pointed out a few goofy looking documents leading up to their recent pleading the 5th in civil court. Since the DJ basically starts out with the 5th it does not look good from here. Its scary when government itself seems skewed.

Not having to worry about secret laws and courts was one of the founding reasons for a short easy to understand document like the Constitution. Government is fast becoming a myth. Good government is a joke. Now we have to worry about secret government interpretations? Expect an increase in high blood pressure/hypertension prescriptions.

Its possible such an interpretation is some kind of post rationalization attempt to justify earlier transgressions and if it worked? Keep up the good bad work?

If the interpretation was planned specifically to violate personal rights (whatever the seemingly patriotic rational) it would be best to ferret out the source and administer red slips.

The public at large does not seem up to neutering bad government practice atm. To point out the obvious as long as there are only two parties in the mind of the average voter... nothing major will change. Business as usual. (the two parties wont change unless they have a rival worth worrying about)
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That Anonymous Coward (profile), 4 Apr 2013 @ 7:43pm

Wasn't DC built on a fetid swamp... doesn't seem to have changed much.
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Anonymous Coward, 5 Apr 2013 @ 1:47am

Re: Re:
bingo. the government is essentially saying that the defense can't prove it's wrong about the information being vital to national security without knowing the legal interpretation. ( the government's right on that point, incidentally- you can't prove a negative. It's one reason why the burden of proof really should rest on the government to prove the data should stay secret.)
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nasch (profile), 5 Apr 2013 @ 7:42am

Re: Ignorance of the law
Seems a pretty good excuse for not following it these days what with ththe number of them AND secret interpretations on top!

Nah, they'll convict you anyway. If you're lucky, they'll show your lawyer the evidence against you (but you won't be allowed to see it because it's classified).
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Jonathan, 6 Apr 2013 @ 12:08pm

Re: I think they got it wrong
The question, as always, is "which people". You should assume every use of a plural pronoun by a public official represents a fallacy of composition unless proven otherwise in deed.

Read through the Federalist Papers sometime, especially #10... the only minority the Framers were seriously interested in protecting were the ownership class.
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Anonymous Coward, 7 Apr 2013 @ 3:50am

Secret Interpretations? Okay.
The DOJ having Secret interpretations is perfectly fine so long as they're considered utterly invalid in a court of law and thus every single thing they do. We're not allowed to make up utter bullshit interpretations that would make assassinating a public figure and declaring themselves "victims of bullet theft due to the deceased not returning it within 30 days" and expect the court to accept it. Or "reasonable suspicion of capital crime of treason" as a reason for launching a missile into their house with a predator drone. After all the whole damn point of having laws is that they are known beforehand!
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Uriel-238 (profile), 7 Apr 2013 @ 11:24am

Re: Secret Interpretations? Okay.
Secret interpretations doesn't have just the danger of use in prosecution. Yes, a conscionable judge will note the expectation of ignorance of the law, but another judge will abide by the common acceptance that ignorance is not a defense.

But secret interpretations are typically used to justify unpopular or even heinous action by the state. One example is the clandestine interpretation of the Geneva Conventions by the Bush administration to interpret organized partisans instead as spies (unlawful combatants), and in denial of due wartime protections subjecting them to enhanced interrogation.

To engage in an applied Godwinism, Secret interpretation of the law is a tool that could allow for a free nation like ours to consider another final solution to the Jewish question.
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