Justice Department 'Complies' With FOIA Request For GPS Tracking Memos; Hands ACLU 111 Fully Redacted Pages

from the the-answer-is-none;-none-more-black dept

Just recently, we learned that the EFF had been handed what appeared to be several pages of severe formatting errors and faulty Morse code in response to its FOIA request for the secret interpretation of the FISA spying law. There were also the "sobering findings" faux-released by the NSA, which left in only enough unredacted wording to open speculation on these "sobering findings," as well as to publicly lament the surely misguided public debate on the super-secret agency's actions. Now, the news comes to us that the FBI has handed the ACLU a stack of papers that would make any toner supplier very happy.

The ACLU filed a FOIA request last July in hopes of receiving some insight into the FBI's tracking of US citizens via GPS devices. Two months later, it filed a lawsuit against the FBI, forcing the issue. At long last, the FBI has responded... with 111 pages of black ink.

Two key memos outlining the Justice Department's views about when Americans can be surreptitiously tracked with GPS technology are being kept secret by the department despite a Freedom of Information Act lawsuit filed by the ACLU to force their release. The FBI’s general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions. 

The word "see" is obviously some sort of joke because there's absolutely nothing to "see" here, unless you consider To, From and Subject fields to be the "smoking gun." Oh, and this one paragraph that leads into 56 straight pages of black ink.

In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court affirmed the suppression of location data generated by a GPS tracking device surreptitiously affixed to a car without court authorization and monitored continuously over a 28-day period.

Yep, that's the power of the FOIA. All the black ink (or blank pages) you could possibly want, delivered months after they're requested. The redactions on these two documents obviously goes far beyond simply protecting sensitive information that might jeopardize ongoing investigations. This is nothing more than the DOJ covering up unconstitutional practices.

The Justice Department's unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking — possibly for months at a time — or whether the government will first get a warrant. This is yet another example of secret surveillance policies — like the Justice Department's secret opinions about the Patriot Act's Section 215 — that simply should not exist in a democratic society.

The ACLU is asking the court to order the DOJ to release these memos in full. The Fourth Amendment's reasonable expectation of privacy is undermined by these secret memos, which limit knowledge of law enforcement tracking efforts solely to the executive branch.

The implications of these withheld documents go even further than discussing GPS tracking. FBI General Counsel Andrew Weissman's explanation of the second memo ("Guidance Regarding the Application of United States v. Jones to Additional Investigative Techniques") leaves the door open for tracking via other technology.

[The] second memoranda [sic] is going to be about guidance about what this means for other types of techniques, beyond GPS, because there's no reason to think that this is going to just end with GPS and some of that is going to be very much a judgment call.

It's already common knowledge that law enforcement agencies are using cell phone tracking. As the ACLU points out, wireless carriers already receive 1.5 million requests for data every year, most of which is used for location tracking. Additional technology, such as drones or license plate readers, make endless surveillance a logistic reality, and all without a warrant.

A fully-redacted document doesn't seem to indicate that the FBI is operating within the constraints of United States v. Jones. It signals the very opposite and provides us with another example of how government agencies, when faced with constitutional limitations, are more than happy to simply "interpret" their way around them -- and keep these interpretations out of public view, perhaps indefinitely. It's extremely hypocritical for the FBI and DOJ to sit in a position of law enforcement when they clearly believe abiding by the law is optional.
 

 

 

 

 

 

 

Filed Under: doj, foia, gps, redacted, spying
Companies: aclu, eff

EFF Gets Secret Interpretation Of FISA Spying Law... And It's Almost Entirely Redacted

from the but-not-completely dept

We've talked about the absolute ridiculousness of having a secret interpretation of a US law on surveillance such that the law actually means something different than what most people (including the politicians voting on it) think it means -- and yet the secret law remains in place for entirely secret reasons. The EFF, as part of an ongoing dispute over all of this, had submitted a Freedom of Information Act (FOIA) request concerning some testimony on that secret interpretation, and it got back a "relevant" document... which as almost entirely redacted. Here's a sample page. Much of it is blocked as "non-responsive" but the "responsive" section is basically entirely blacked out. The only text of the entire document that's available (other than the cover page) is:

The Government has provided copies of the opinions and the filings by the Government to this Committee, and the Government will continue to inform the Committee about developments in this manner.

It's ridiculous to continue arguing -- as Senator Dianne Feinstein has done repeatedly -- that there is no secret law here. She's being deliberately misleading, confusing "the law" with "the legislation." The legislation is the text as written by the legislature, but "the law" includes specific rulings by courts on the legislation. The legislation may be public, but the law is not when the rather important interpretations of the legislation remain completely redacted.

Filed Under: fisa, foia, redacted

FBI, Working With Banks, Chose Not To Inform Occupy Leadership Of Assassination Plot On Its Leaders

from the gee,-thanks dept

Whatever you thought of the so-called "Occupy" movement of the past year or so, it seems clear that there has been at least a bit of overreaction to them. I mean, treating these protests, which have, by and large, been peaceful, as terrorist groups is just silly. But, as you may have seen over the past few days, that's exactly what the FBI did (as uncovered by the Partnership for Civil Justice Fund (PCJF)), and they did it in a coordinated manner with both Homeland Security and privately held banking corporations. This certainly isn't the first time government organizations have allowed for the appearance of impropriety this way, but just as when DHS held a press conference from Disney's HQ, there's a certain flaunting feeling when the coordination with private companies against the public is so blatant.

All that being said, you'd at least expect the FBI, no matter what level of corporate bowing they wish to engage in, to at least keep American citizens apprised of threats against their life. Unfortunately, it would appear the FBI disagrees when the citizens in question are Occupy leadership, as they allowed a plot to murder Occupy leadership in Texas with suppressed sniper rifles go untold until a rights group dug it up.

Last week, Digital Journal reported that the documents obtained by PCJF detailed how the FBI cooperated with the Department of Homeland Security, US military and private corporations to monitor and investigate Occupy Wall Street protesters as "domestic terrorists" and "criminals." The documents prove that federal agencies are "functioning as a de facto intelligence arm of Wall Street and corporate America," PCJF said.

Thorough analyses of the documents has now revealed a heavily redacted file that clearly mentions a plan to use snipers to assassinate Occupy protesters. The names of the groups or individuals involved in the murderous plot have been redacted, so it is impossible to identify them at this time. What is known is that the FBI never alerted any of the potential victims of the danger to their lives.

We're talking heavily redacted text here, which strips out a bunch of details, but here's the text that is available.

An identified [redacted] of October planned to engage in sniper attacks against protesters in Houston, Texas, if deemed necessary. An identified [redacted] had received intelligence that indicated the protesters in New York and Seattle planned similar protests in Houston, Dallas, San Antonio and Austin, Texas. [Redacted] planned to gather intelligence against the leaders of the protest groups and obtain photographs then formulate a plan to kill the leadership via suppressed sniper rifles.

What's plain as day is that some group somewhere was plotting to murder OWS leadership in Texas. It's also clear that the FBI never bothered to inform the targets of the threats against their lives. This stands in apparent contrast to how closely they worked and coordinated with private banks to handle the OWS protests as a whole. And, remember, this is the same FBI who has put tremendous effort over the past few years into breaking up its own terrorist plots. You'd think that when it had a chance to go after actual plots to assassinate leaders of a political movement, they might, you know, actually do something and then trumpet the success in stopping a real plot. Apparently not.

So the lesson here is simple. If you're a private bank, the FBI will help you demonize non-violent protesters as "terrorists," but if you're a protester, you don't get to know that you might have an infrared dot dancing on the back of your head -- or have the FBI take it as serious as one of its own made up terrorist plots.

Filed Under: banks, fbi, foia, investigation, occupy, occupy wall street, plots

San Diego Refuses To Answer FOIA Requests About Drones Because 'There Is Very Little Public Benefit'

from the keeping-the-public-in-the-dark-for-their-own-benefit dept

A few months ago, MuckRock and the EFF teamed up to start a drone watch effort, in which they send Freedom of Information Act (FOIA) -- or the local equivalent -- requests to local governments and police departments, seeking to find out information on local law enforcement using drones. At last count, over 200 such requests have been made. You can track them here. As you might imagine, they're getting very varied responses, with some saying that there are no responsive documents. In many cases, it's likely that this is true.

However, the folks at MuckRock discovered something interesting in looking over some of the responses. While the San Diego County Sheriff's office initially stated that they had no responsive documents, reviewing the Seattle Police Department's response suggested that San Diego was lying. Why? Because the Seattle release shows an email from a manufacturer of drones, Datron World Communications, to Seattle police in which they share a sales quote that was sent to San Diego for a drone, the Scout UAV (unmanned aerial vehicle).

Attached is the quotation recently provided to the SD Sheriff's CID team. They visited Datron's facility and experienced the system with all three cameras and left with a flashdrive full of personal footage and a new found purpose for submitting their wish-list early. Use this quote as a reference point for configuring your system. With this we should be able to tailor an ideal system for your needs and gain marketing support for 'special pricing' specifically for Seattle PD.

Given this contradiction, MuckRock sent a followup request to San Diego, asking the Sheriff's office to explain this newly revealed information. In response, the sheriff's "legal advisor" sent a note saying that "we decline to comment on the sales quotation referenced in your September 4, 2012 letter." Well, isn't that nice? Of course, under freedom of information laws you can't just ignore such requests. As MuckRock notes:

As is true in most states, California's public records law provides that documents related to equipment purchases are matters of public record unless exempted by statute. Accordingly, the San Diego County Sheriff and other public agencies have the latitude to justify denial of public records requests, but not to "deny comment" when faced with such a request.

After continuing to press the San Diego Sheriff's office, MuckRock was first told that San Diego had not purchased such drones and then that it will not release the records because "there is very little public benefit in the release of such records," in part because the quote from the company had not resulted in a purchase. The office then notes that the request is denied "on the grounds that any information and/or records obtained by the Sheriff's Department are protected by the Deliberative Process privilege, as well as the Official Information privilege (Evidence Code 1040)."

Again, MuckRock notes that San Diego is misreading the law in question:

But public records law puts the burden of evidence not on those who seek disclosure, but on those who would keep them from public view. Evidence Code section 1040 of California's disclosure law, which the San Diego County Sheriff's office has invoked as a basis for its denial, provides that public agencies may refuse to disclose official information in the case that such disclosure "is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice."

The onus is on the Sheriff to demonstrate how releasing the documents sought by MuckRock would injure the public interest.

As they note, the public has a "right to know" when their government is using drones to surveil the public, and it's unfortunate that some governments seem to be stonewalling requests for information.

Filed Under: drones, foia, san diego, seattle
Companies: eff, muckrock

Bradley Manning's Prosecutor Scolded For Refusal To Open Access To Court-Martial Proceedings

from the government-hates-us-for-our-freedom dept

As was noted here back in September, several news organizations have begun a coordinated push to have the Bradley Manning court-martial "opened up" to allow the general public to access motions, briefs and rulings. The military refused (of course), inviting the press to entertain itself with near-useless FOIA requests, a clunky form of "openness" prone to inexplicable (and endless) delays when not being ignored completely.

Fortunately, the military appeals court has taken this plea for openness more seriously than the government itself, which seems to treat it as an unwelcome nuisance at best. On Wednesday, the Court of Appeals of the Armed Forces (CAAF) began looking into allegations that the government has violated First and Sixth Amendment rights in regards to free press and public trials by making all filings and transcripts inaccessible.

The CAAF had little patience with the government's insistent obfuscation but seemed unsure as to whether it could actually force a change:

Center for Constitutional Rights attorney Shayana Kadidal had barely started his opening arguments about the public's hunger for more information on the case when one of the judges interrupted him. "Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked.

Kadidal appeared unprepared to answer, noting that the matter had not been disputed. "It certainly wasn't challenged by the government," he replied.

Other judges had the question in mind as well.

Judge Scott Stucky asked whether the journalists fighting the policy had standing to challenge a restriction that affects the press and public alike. Kadilal replied that the "fact that the injury is widely shared" did not harm his clients' case.

"Widely shared" is correct. In all, 31 news outlets signed off on an amicus brief filed by the Reporters Committee for Freedom of the Press, and several other entities have petitioned for access. Some discussion ensued as to whether or not a sort of PACER access could be implemented, and Kadilal proposed several possibilities, including paid stenographers, online audio streams of the proceedings, or having redacted documents posted to the court's website.

Chief Judge James Baker offered somewhat of a compromise in order to move the proceedings along:

Baker ordered the parties to submit written arguments about whether the court has jurisdiction to grant this type of relief. If the journalists vault procedural hurdles, the judges seem inclined to open court-martial access.

At this point, the panel turned on government lawyer Capt. Chad Fisher, pointedly asking why the executive branch felt it necessary to force this issue to be discussed rather than simply open the trial up for public access:

"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked, adding that the government chose litigation over "simple and reasonable" solutions.

In an amicus brief, the Reporters Committee for Freedom of the Press pointed out that military commissions at Guantanamo Bay put court records online. Judge Erdman picked up this point in asking, "If they can do it, why can't you?"

A perfectly fair question, but one that Capt. Fisher instead decided to "answer" with another assertion of executive level privilege.

The captain insisted that courts-martial are a "creature of the executive" branch, rather than the judiciary.

While courts must provide prompt access to records, the public can seek executive-branch files only through Freedom of Information Act. Such requests, however, are subject to delays and exemptions. Many news outlets, including Courthouse News, have had their FOIA requests for documents in the Manning case denied.

Basically, Fisher's answer boils down to: if the general public wants this information, it's going to have to work for whatever scraps the executive branch deems it worthy of. Nominally a tool of transparency, the FOIA has been twisted into a barely functioning layer of bureaucracy that most administrative agencies seem to treat as completely optional. Whatever doesn't get delayed indefinitely or redacted into uselessness is simply denied under any number of executive privileges or for bogus "national security" reasons. One of the CAAF judges pointed out this irony, stating that the FOIA statute has done more to close off access to the Manning case, than to open it further.

Fisher's next statement displayed the sort of hubris inherent in agencies that routinely disregard the rights of others:

Though the trial briefs and transcripts are not under seal, Fisher said that the government has no obligation to make them available.

Judge Erdmann ridiculed that position. "You don't see anything wrong with giving the public the documents, but you don't have to so you're not going to," he said.

This answers Judge Ryan's question from earlier: why make a Constitutional case out of this? The answer: because certain agencies will never do ANYTHING that results in transparency or openness until forced to, and even then, their compliance will be marked by endless delays, appeals and attrition.

Judge Baker pressed the point by pointing out that the government's representation was willing to avail itself of all available rights and privileges, but was unwilling to extend those courtesies to others.

Baker highlighted the discrepancy by noting that Fisher, like his courtroom adversary, would get to speak after his allotted time.

"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.

While it's refreshing to see a panel of judges as sick of governmental hubris and obfuscation as much of the public is, this matter is far from settled. The government will likely continue to hold out as long as possible before granting access to Manning's court-martial.

In order to expedite the proceedings, Kadilal has suggested that the court find that "court-martials have a First Amendment obligation to public access," passing along the implementation logistics to the lower court. However, if the CAAF finds the decision is out of its jurisdiction, Kadilal said he plans to seek "emergency relief in a federal court." Unfortunately, forcing the issue in this fashion would require Manning's defense to file a stay of trial, resulting in further delays for the defendant who has already spent over 900 days in pre-trial incarceration.

While demands for openness currently remain unmet, it's good to see another set of judges irritated with the standard M.O. of many government agencies: closed, secretive and unwilling to change unless forced.

Filed Under: bradley manning, court martial, foia, press freedom, secrecy, transparency

ICE Reluctantly Releases A Small Number Of Heavily Redacted Domain Seizure Docs, Holds The Rest Hostage

from the but-of-course dept

Back in December of 2010, Aaron Swartz filed a Freedom of Information Act request regarding the Immigrations and Customs Enforcement (ICE) efforts to seize, without any notification or adversarial hearings, domain names which ICE claimed were facilitating copyright and/or trademark infringement. After nearly two years of back and forth (including ICE apparently losing an updated request and closing the request because of it), ICE has finally delivered 100 pages worth of heavily redacted material which are close to useless. They are also claiming that there are another 16,137 records out there, but they want him to pay over $1,000 to get the rest. They told him if he didn't cough up the money within a few days, they would consider the request closed. Aaron, with the help of the Muckrock site (which helps people file FOIAs), is appealing this decision.

In the meantime, however, we have 100 mostly useless documents that appear to just show the warrants that US Magistrate Judge Alan Kay approved on the morning of November 23rd, 2011. Of course, these are completely redacted, so you don't even know what domains they're referring to. In going through the documents, the only thing of interest that I spotted was that the judge time stamped each warrant signature, and many of them are mere minutes from one another -- at least raising some questions concerning how carefully the judge reviewed each individual case before granting the warrant that allowed the feds to then seize and shut down those sites. Considering that we already have two known cases -- Dajaz1 and Rojadirecta -- in which it later came out that the government did not have the necessary evidence, and where the feds were embarrassingly forced to hand back the domains and drop legal proceedings, it seems that a judge should be expected to at least spend some time understanding why it is he's signing off on an order to take down speech.

Either way, it really does seem like these documents being the first 100 released was, perhaps, done on purpose, to make sure the released documents don't actually get at what Swartz actually requested, which was:

• Any guidelines or protocols for ICE agents about the procedures for seizing domains
• Any communications between ICE and other government agencies with regard to the seized domains
• Any communications between ICE and intellectual property owners requesting domains be seized or discussing seized domains
• Any court filings requesting authorization to seize domains
• Any internal emails mentioning the seized sites
• Any legal memos mentioning the seized sites

Instead, he gets 100 pages of heavily redacted warrants? What a joke. And, is it that difficult to expect that a judge will take more than a minute or two to understand the issues at hand when signing off on a warrant to completely shut down a website with no adversarial hearing with the site owner?

Filed Under: aaron swartz, domain seizures, foia, ice, redacted

Still All Talk: 19 Of 20 Presidential Cabinet Agencies Ignore Requirements Of The Freedom Of Information Act

from the freedom's-just-another-word-for-*********** dept

Despite having 45 years to get "warmed up," the era of "open government" may take several more cycles before it becomes a reality. President Obama promised an unprecedented level of openness, but to date, the level of openness remains pretty much unchanged from his predecessors'.

An analysis of open-government requests filed by Bloomberg News shows that most cabinet-level agencies would rather break the law than comply with the requirements of the Freedom of Information act. And by "most," Bloomberg means "nearly all."

Nineteen of 20 cabinet-level agencies disobeyed the law requiring the disclosure of public information: The cost of travel by top officials. In all, just eight of the 57 federal agencies met Bloomberg’s request for those documents within the 20-day window required by the Act.

The Bloomberg analysis also tracked the timeliness of information requests, pointing out that fast turn-time was referred to as "an essential component of transparency" by Attorney General Eric Holder. Bloomberg was seeking disclosure on out-of-town travel expenses generated by top officials.

About half of the 57 agencies eventually disclosed the out-of-town travel expenses generated by their top official by Sept. 14, most of them well past the legal deadline.

The travel costs generated by some other Obama officials --Transportation Secretary Ray LaHood, Energy Secretary Steven Chu, Environmental Protection Agency Administrator Lisa Jackson, and Homeland Security chief Janet Napolitano -- also remain undisclosed.

A request made in June for the travel records of Susan Rice, the U.S. Ambassador to the United Nations, will remain unfulfilled for more than a year, according to a federal official involved in the case.

“We really appreciate your patience in this matter. The estimated completion date is July 2013,” wrote Chris Barnes, a State Department FOIA official, in a Sept. 24 e-mail. Under FOIA, the department is required to offer a timetable for delayed responses.

Travel expense reports aren't exactly the most arcane records. Every business has them and while the government may have more to track, it's hard to believe that requesting this data on only the top official in each department should take longer than the 20-day period. In fact, it's hard to believe that this data needs to be requested at all.

Eric Newton, senior adviser at the Knight Foundation, a Miami-based group that promotes citizen engagement, said agencies have no excuse not to rapidly disclose travel costs.

“In a 24/7 world, it should take two days, it should take two hours,” Newton said. “If it’s public, it should be just there.”

It looks as if FOIA requests, no matter what their reason, are either being stalled or given a very low priority in certain departments. Whatever can't be held off indefinitely is being avoided completely through abuse of exemptions. The Obama administration flexed its exemption muscle during its first year, deploying 50% more than the Bush administration. Since then, the numbers have died down a bit, but there's no reason to start celebrating a "new era of openness." This simply means a drop from a high of 466,402 down to 369,417 exemptions in 2011.

To the surprise of absolutely no one, a majority of these exemptions (231,634) were deployed by the Department of Homeland Security. (The next two are the Dept. of Defense [30,861] and the Dept. of Justice [23,916].) With the handy ability to cite the interests of "national security" at the drop of a hat, the DHS can turn down nearly any request. This hasn't stopped the public from trying, however. The DHS still receives the most requests but it's hard to believe it's receiving 10 times the number of requests the Dept. of Justice is, making its exemption percentage that much more egregious.

Even with exemption deployment being the default setting for a few agencies, there are currently no exemptions that apply to the requested travel information from disclosure. A slight delay could be expected for redaction efforts, but as Bloomberg points out, other agencies redacted personal data and still managed to respond in a timely fashion.

Responsive agencies were able to redact personal details within the FOIA time period. The Federal Housing Finance Agency, the chief regulator for Fannie Mae and Freddie Mac, provided the travel expense records for Acting Director Edward DeMarco’s six trips out of town within 15 days of the filing.

DeMarco’s trips cost $5,653.29, the documents show. Personal information such as his Social Security number and home address were blacked-out in the file.

Some of these delays can also be chalked up to good old fashioned bureaucracy, something which nevers seems to go out of style in DC. The administration is working on a streamlining plan for the FOIA process, but it's being rolled out at a very bureaucratic pace.

The administration acknowledged systemic issues with the FOIA process when the Office of Management and Budget issued guidelines Aug. 24 to all federal agencies on how to streamline government information. The memo called for all government information to be stored in an electronic format by December 2019 -- almost three years after the end of a potential second Obama term.

A glacial pace only a bureaucrat could love combined with what Bloomberg refers to as a "culture of obfuscation" means that requesting something as simple as travel records becomes an exercise in near futility. The Freedom of Information Act has been around since 1966 which means that a.) this isn't just this administration's problem and b.) the government has had more than four decades to make the process run more smoothly. One can only conclude that the government has very little interest in transparency, no matter what promises were made during the "honeymoon" period.

Fortunately, many more entities like the ACLU and the EFF are working to make the government comply with its own law. The process is arduous and far from satisfying, but without a continual push, the government will continue to allow the public to pay for the "privilege" of being told it's "none of their business." Oh, and it should be noted that after I finished this, Mike informed me that he's been waiting for months for the response to a FOIA he filed which, by law, should have been completed back in July. The reason given by the agency in question for the delay: give us more time, because we only have two people working on all FOIA requests.

Filed Under: administration, foia, freedom of information, secrecy, transparency

Credit Where It's Due: DOJ Changes Its Tune On FISA Transparency

from the now-let's-see-what-happens dept

Earlier this week, I complained that the Department of Justice seemed to be stonewalling a Freedom of Information Act request I’d filed seeking copies of mandatory semi-annual reports to Congress on the National Security Agency’s compliance with the procedures and civil liberties safeguards of the FISA Amendments Act--which the House voted yesterday to reauthorize for another five years. After sitting on the request for two months (the statutory deadline is 20 business days), DOJ had finally replied with a letter claiming they could "neither confirm or deny the existence" of reports that were required by federal law. I thought this was a little ridiculous. Fortunately, there were officials at the Justice Department who thought so too.

Having appealed the denial of my request, I got an impressively prompt reply on Tuesday evening from the director of the Office of Information Policy at DOJ, assuring me that she recognized the agency's initial response had been "incorrect," and that a new one would be forthcoming immediately. By Wednesday morning, their stance had changed entirely: They had found the reports I sought, and were forwarding them to the Office of the Director of National Intelligence (ODNI) for review to determine what would need to be redacted before release--with a request that ODNI seek to expedite its analysis to compensate for their own delay.

Now, to be sure, I'd rather have had this response a month ago, and the documents before the House vote, but at this point DOJ appears to be doing exactly what they're supposed to and making a good faith effort to facilitate the redaction and release of these important assessments. So it seemed appropriate to follow up on my initial blog post to acknowledge that--and in particular Office of Information Policy director Melanie Pustay, who straightforwardly acknowledged the error and acted quickly to correct it. We'll see soon enough whether a similar spirit of transparency reigns at ODNI.

Cross-posted from Cato-at-Liberty.

Filed Under: doj, fisa, fisa amendments act, foia, freedom of information, mistakes, odni

Testing 'The Most Transparent Administration in History'

from the not-so-transparent dept

Barack Obama pledged to preside over the “most transparent administration in history,” drawing an explicit contrast with the extreme secrecy of his predecessor. The Web site of the Department of Justice highlights that pledge, declaring its commitment to faithfully carry out a presidential directive encouraging such transparency, especially with regards to Freedom of Information Act requests, which are a vital tool for public accountability and informed democratic deliberation about government’s activities. Earlier this summer, I decided I’d put that commitment to what should have been an easy test.

When Congress passed the controversial FISA Amendments Act of 2008, granting the NSA broad power to conduct sweeping electronic surveillance of Americans’ international communications without individualized search warrants, it wisely required the Justice Department to issue semi-annual reports to Congress on the government’s implementation of the law, evaluating compliance with the various rules, guidelines, and procedures in place to reduce the risk of civil liberties abuses. While these reports are classified, redacted versions of several previous installments have been released to the public in response to Freedom of Information Act requests. The most recent is from May of 2010, which means that by now there are three or four further reports on the government’s use of its new spying powers which haven’t been seen by the public.

Since the FAA is set to expire at the end of this year, and Congress is rapidly steamrolling toward reauthorizing the law for another five years, it seems like now would be a good time to let the public see the latest versions of these reports—with any specific references to operational details removed, of course. That’s especially true given that we’ve recently learned that at least one ruling by the secretive FISA Court found some surveillance under the FAA had violated the Fourth Amendment. The latest reports, even in redacted form, might give us further insight into the scale and seriousness of this violation of Americans’ constitutional rights. If, on the other hand, we find no mention of this in the official reports, it would be powerful evidence that Congress is getting a whitewashed account, and that internal oversight may not provide adequate protection for our privacy and liberties. Again, the government has already released several previous installments of this report—though the ACLU ultimately had to file a lawsuit before they agreed to do so—so there should be no doubt now as to whether these are documents they’re obligated to release.

On June 26, therefore, I sent a FOIA request to the Justice Department asking for the release of the newer installments of this important report—specifically asking for expedited review, given the importance of informing the public about the use of the law before Congress renews it. On July 6, I got a response acknowledging that my request had been received and forwarded to the FOIA office of the DOJ’s National Security Division. Federal law requires agencies to reply to these requests within 20 business days. I was still waiting when, a few days ago, a bill extending FAA spying authority was scheduled for consideration before the House of Representatives this week. I did, however, have a brief phone conversation with the NSD’s FOIA officer confirming that she was evaluating my request, and that she understood clearly exactly which reports I was requesting.

Yesterday morning, September 10—more than two months after acknowledging receipt of my request for these three or four documents—I finally got a reply (my emphasis added), denying my request with the following unhelpful boilerplate:

The Office of Intelligence (OI) maintains operational files which consist of copies of all FISA applications, as well as requests for approval of various foreign intelligence and counterintelligence collection techniques such as physical searches.  We did not search these records in response to your request because the existence or nonexistence of such records on specific persons or organizations is properly classified under Executive Order 13526.  To confirm or deny the existence of such materials in each case would tend to reveal which persons or organizations are the subjects of such requests.  Accordingly, we can neither confirm nor deny the existence of records in these files responsive to your request pursuant to 5 U.S.C. §552(b) (1).

This is, in a word, ridiculous. The “existence” of the reports I asked for is required by federal law. To the extent they contain passing references to any specific persons or organizations under investigation, these can easily be redacted, and have been redacted for previous public releases of the same documents. No reasonable person could believe that this reply is applicable to my request. If it had been sent immediately, you could at least put it down to sloppiness or inattention, but remember, it took them two months to send out a denial based on the preposterous claim that it is classified information whether a report mandated by federal statute even exists.

I can appeal—and of course, I intend to—but since that’s likely to drag out the process for at least another month or two, the reports are likely to come too late to be relevant to the debate over FAA reauthorization. Try as I might, it’s almost impossible for me to see this as a good faith response to my request. Instead, it looks an awful lot like a stalling tactic calculated to drag out the process until it’s too late for the documents to be relevant to the debate over the FAA. I suppose this shouldn’t be terribly surprising: DOJ’s modus operandi, at least when it comes to anything controversial or potentially embarrassing to the government, seems to be to force FOIA requesters to waste time, energy, and money going to court even when it’s painfully obvious there’s no legitimate legal basis for sustaining a denial. That this is routine enough to be predictable, however, shouldn’t make it any more acceptable in a democracy.

Cross-posted from Cato at Liberty.

Filed Under: fisa amendments act, foia, politics, secrecy, transparency

Too Much Secrecy: Press Ask The Court To Open Up Bradley Manning Court Martial

from the how-we-got-into-this-mess dept

As the case against Bradley Manning moves forward, the government is doing what it always seems to do: trying to keep everything secret. However, over 30 news organizations have now asked the armed forces appeals court to open up, allowing public access to motions, briefs and written rulings associated with the case. The military's response has been that the only way the press should be able to access such documents (which are regularly available via things like PACER in the civilian court system) is through filing Freedom of Information Act (FOIA) requests, which can take a long time, and are all too often ignored. Of course, it's the over aggressive attempts to keep information secret that may have resulted in this case even existing in the first place, as Manning allegedly believed that the over-classification of documents was harming US interests.

This Court should find that such an arrangement is uncon-stitutional. More than thirty years ago, the U.S. Supreme Court recognized a presumptive right of access to criminal proceed-ings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). As discussed below, the Court has reiterated its holding repeatedly, and the nation’s military courts have applied the same reasoning to extend this right of public access to courts-martial. Amici recognize that various interests, including the need to protect national security information, may justify sealed records in certain circumstances. They do not, however, general-ly justify complete secrecy. In fact, previous disputes about claims of national security have been litigated in the open: “Briefs in the Pentagon Papers case and the hydrogen bomb plans case were available to the press, although sealed appendices discussed in detail the documents for which protection was sought.”

Hopefully the court recognizes the significant public interest here and makes such documents public by default.

Filed Under: bradley manning, docket, foia, freedom of information, journalism, secrecy
Companies: wikileaks