With Repeated Reports Of Long-Term NSA Abuses, Does Anyone Actually Believe NSA Is Following The Law Today?

FISA Court Tells The DOJ That It Needs To Explain Why It's Ignoring Order To Declassify Surveillance Opinion

from the can't-just-say-no dept

Wed, Nov 20th 2013 3:47pm — Mike Masnick

Yesterday, we wrote about the DOJ responding to a FISA Court order that it declassify a FISA Court ruling on the interpretation of Section 215 of the PATRIOT Act (related to the bulk collection of metadata), in which the DOJ effectively told the court that it wasn't going to obey. This was the extent of the DOJ's reasoning:

After careful review of the Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided

Basically, yes you told us to declassify it, but we've decided that we won't. Now, of course, the FISA Court itself is well aware what's in that particular February ruling, and since it ordered it to be declassified, it doesn't seem to think there's a major reason to keep it secret. So, it took all of a day for the FISA Court to order the DOJ to at least explain itself better:

The government has provided no explanation of this conclusion.

Accordingly, it is hereby ORDERED that, no later than December 20, 2013, the government shall submit a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.

Of course, in keeping with FISC tradition, this is a pretty tame response to the DOJ basically giving a giant middle finger to the FISC's earlier order. And, again, the FISC knows darn well what's in the ruling that the DOJ refuses to make public, because it's the FISC's own ruling. So they seem to think that there's good reason to declassify it. Hopefully, the FISC will actually, for once, stand up to the DOJ, but I'm not holding my breath.

Misc 13 02 Order 131120 (PDF)Misc 13 02 Order 131120 (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: bulk collection, declassification, doj, fisa court, fisc, metadata, nsa, patriot act, section 215, surveillance

28 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 20 Nov 2013 @ 2:55pm

Another poster mentioned it when the story first came out, but the FISA court should back up the order with an ultimatum: either the DOJ releases it, or the FISA court will do it for them.
[ link to this | view in chronology ]
- Bergman (profile), 21 Nov 2013 @ 12:52am
  
  Re:
  A better threat would be that either the DOJ complies with the order or the court will strike down the secret interpretation (or possibly even the Section of the Act itself).
  [ link to this | view in chronology ]
  - That One Guy (profile), 21 Nov 2013 @ 2:16am
    
    Re: Re:
    They'd still have to make it public, otherwise the affected agencies would just claim to still be operating under the law(though not necessarily that law), and since they'd still be claiming that the 'interpretation' that granted them legality was classified/sensitive, you'd just end up in the same place as before.
    
    Still, taking away one avenue of abuse by removing the interpretation or the section would certainly be a huge blow to them, so hopefully the FISA court will have the guts to do so if the DoJ does the expected and returns some nonsense, under seal 'response'.
    [ link to this | view in chronology ]
Anonymous Coward, 20 Nov 2013 @ 3:49pm

I had that exact question: why doesn't FISA just release it? Is there some legal or technical reason DOJ has to be the one to release it?
[ link to this | view in chronology ]
- That One Guy (profile), 20 Nov 2013 @ 4:15pm
  
  Re:
  It gets even more ridiculous when you realize the document in question is a legal ruling/opinion from the FISA court itself.
  
  So the DoJ is basically saying that the FISA court, which made the ruling, isn't qualified to determine whether or not said ruling is sensitive enough to be made public.
  
  Or in other words 'You don't get paid to think, you get paid to agree with us and sign whatever we put in front of you.'
  [ link to this | view in chronology ]
  - Anonymous Coward, 20 Nov 2013 @ 11:59pm
    
    Re: Re:
    Or, in other words, "Guess who signs your paychecks?"
    [ link to this | view in chronology ]
- Anonymous Coward, 21 Nov 2013 @ 8:38am
  
  Re:
  "why doesn't FISA just release it? Is there some legal or technical reason DOJ has to be the one to release it?"
  
  Pretty sure that once it's been classified only the executive branch can declassify something. The other branches have some ability (aka through a case/heaing or via some oversight/money witholding), but it's very limited and much easier for the executive branch to do it. The problem lies in why would they release something that's in their best interest to hold onto? What's the incentive?
  
  As much as we'd like to think the government runs smoothly and properly, it's run by humans which means it's very incentive based. What's my incentive? Where do I gain the most or have the easiest time? It's basically Office Space. The problem is when we can let people (especially in government) get away with the easiest rather than the best.
  [ link to this | view in chronology ]
anonymouse, 20 Nov 2013 @ 3:56pm

anonymouse
Why do they not just put there answer in plain English and tell them to go fuck themselves cos this is what they are basically saying.
[ link to this | view in chronology ]
Anonymous Coward, 20 Nov 2013 @ 4:08pm

Other than the court releasing the document themselves, what else can they do. The DOJ is part of the executive branch which is in charge of enforcing the laws. If the executive branch does not want to, who's left?
[ link to this | view in chronology ]
- Bergman (profile), 21 Nov 2013 @ 12:52am
  
  Re:
  Smith & Wesson.
  [ link to this | view in chronology ]
Watchit (profile), 20 Nov 2013 @ 4:47pm

What's the point of a judiciary branch if the executive branch ignores it?
[ link to this | view in chronology ]
- Niall (profile), 21 Nov 2013 @ 4:51am
  
  Re:
  All three branches regularly ignore each other.
  [ link to this | view in chronology ]
Nigel Lew (profile), 20 Nov 2013 @ 4:57pm

Too Bad... Precedents
Its a shame that no precedents can be gleaned from this ghostly non existent(for all intents and purposes)court.

"Meh, fuck it your honor. I just don't feel like doing it."
[ link to this | view in chronology ]
Michael Donnelly (profile), 20 Nov 2013 @ 5:06pm

Or another way of looking at it:

Government: we can't release the opinion because of Shiny Distracting Object.

Court: you failed to explain Shiny Distracting Object. You are ordered to submit a detailed explanation of Shiny Distracting Object.

And off we go, away from PUBLISHING THE GODDAMN LAW to fighting about pointless shit. I wonder what will happen next? My money is on "anything other than publishing the goddamn law".
[ link to this | view in chronology ]
OldGeezer (profile), 20 Nov 2013 @ 5:21pm

WOW! I'm guessing that this must be a huge embarrassment to the NSA or they would not be fighting it so hard. It would be hilarious if this is among the Snowden documents and the Guardian publishes it soon. It is obvious they don't have a clue what all he took.
[ link to this | view in chronology ]
Noah Callaway, 20 Nov 2013 @ 6:59pm

If I responded to a court order in this way then the judge's response would definitely include threats of contempt of court if I didn't comply. I'm glad that we have two separate systems (even if it's unwritten). I'd hate to think that they have to live by the same rules I have to live with.
[ link to this | view in chronology ]
Anonymous Coward, 20 Nov 2013 @ 7:38pm

This is probably the Court's way of saying "One way or another, the ex parte crap will be coming to an end. Don't make this harder than it has to be."
[ link to this | view in chronology ]
Shmerl, 20 Nov 2013 @ 7:43pm

DOJ will just turn it into an infinite loop
They'll say something along these lines:After careful review of the Detailed Explanation by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Detailed Explanation about why the Opinion can't be made public should be withheld in full and a public version of the Detailed Explanation cannot be provided.
[ link to this | view in chronology ]
Anonymous Coward, 20 Nov 2013 @ 7:51pm

So it's illegal but the court can't tell us
Court rules mass surveillance illegal, DOJ hides court opinion, tells everyone court says its legal.

If the FISA court said it was legal then the DOJ would have no issue releasing it.

So we know its not.
[ link to this | view in chronology ]
- nasch (profile), 21 Nov 2013 @ 9:16am
  
  Re: So it's illegal but the court can't tell us
  If the FISA court said it was legal then the DOJ would have no issue releasing it.
  
  So we know its not.
  
  I think it's more likely that there are things this ruling allows, and that the DOJ has been doing, that they don't want us to know about.
  [ link to this | view in chronology ]
Anonymous Coward, 20 Nov 2013 @ 8:15pm

OMG not even the government has any respect for the justice department anymore.

Is this the rule of law? LooooooooooooooooooooooooooL
[ link to this | view in chronology ]
Hans, 20 Nov 2013 @ 9:07pm

"But it's legal!"
Remember this the next time you hear Feinstein or some other surveillance apologist say that it has judicial and congressional oversight. What a load of crap...
[ link to this | view in chronology ]
- That One Guy (profile), 21 Nov 2013 @ 2:24am
  
  Re: "But it's legal!"
  Oh it's 'legal' alright, but only because the NSA and it's supporters/cohorts are doing everything they can to make sure it never hits an open court where the 'legality' can be examined and challenged.
  [ link to this | view in chronology ]
Felch, 20 Nov 2013 @ 9:14pm

When are you guys going to realize that these "two" parties are just bantering back and forth while a "third" party attempts to pass legislation that, somehow, not only legalizes the behavior in question, but retroactively so.
[ link to this | view in chronology ]
Anonymous Coward, 20 Nov 2013 @ 11:01pm

December 20th?? A full month? They should've given them a week at most.

In fact, screw asking for the "explanation" of what they aren't giving it, they'll probably just use another BS excuse such as "it will endanger national security if we do".

Just tell them they are ORDERED to give them the info NO MATTER WHAT. They are the frigging judges that are supposed to be the OVERSIGHT of these guys. Use that damn power already over the NSA.
[ link to this | view in chronology ]
Crusty the Ex-Clown, 21 Nov 2013 @ 7:06am

Repeating myself.....
.....none other than Supreme Court Justice Stephen Breyer stated that "If a law isn't public, it isn't a law." So, obviously, these chicken-shit interpretations and assessments and decisions or what-have-you are demonstrably NOT laws. Discussion?
[ link to this | view in chronology ]
Pixelation, 21 Nov 2013 @ 7:26am

NSA response..."Because, F-U!".
[ link to this | view in chronology ]
Anonymous Coward, 21 Nov 2013 @ 9:23am

how long is it going to be before everyone, including this bunch of 'Yes Men' on the FISA court, realise that the security services of the USA think they are above ALL laws, and i dont mean just those of the USA either! they think they can do whatever they want, whenever they, want wherever they want with absolute impumity, absolute no reason to explain themselves and definitely absolutely no way of being held accountable, let alone be punished! in other words, fuck every one, we will do the above and ignore all others!
this is what happens when any government body is allowed to go down a road of it's own making, for it's own purposes and not have accountability!
[ link to this | view in chronology ]