Judge Gives DOJ Until The End Of The Month To Submit Declassified Opinion Containing FISA Court's Justifications For The Section 215 Program

from the surveillance-state-sausage-making dept

It appears the government will finally be releasing the FISA court's thought process justifying the mass harvesting of Americans' metadata from fully-immunized telcos under the Section 215 program (now 501). An earlier court order from FISA judge Dennis Saylor discussing the potential release of this court opinion described it thusly:

The government has identified the Opinion issued in Docket Number BR 13-25 on February 19, 2013, as one that "contain[s] analysis by this Court evaluating the meaning, scope, and/or constitutionality" of Section 215 of the USA PATRIOT Act, codified as amended at 50 U.S.C. § 1861.

Whether it will be instructive and enlightening (rather than stuffed full of Third Party Doctrine bullshit and circular "it's legal because it's legal" reasoning) remains to be seen. But the last two words of that previous sentence are something at least: it will "be seen." And, apparently, with a minimum of redactions.

For the reasons stated herein, the Court is directing the government to prepare and declassify a redacted version of the opinion issued by the Foreign Intelligence Surveillance Court (FISC) in Docket Number BR-25 on February 19, 2013.

The ACLU (and others) have pushed for a release of this particular FISC opinion for more than a year now. The court doesn't even attempt to address the First Amendment implications of withholding the opinion from the public because there are plenty of other angles justifying its release. The court notes that the release would serve the public's interest as recent disclosures (both authorized and unauthorized) have brought the Section 215 program into the court of public opinion (as well as actual federal courtrooms).

While the FISA court may have arrived at this conclusion based on ongoing events, the government arrived somewhere completely different.

After appropriations had been reinstated and a timetable for declassification review had been set, the government advised that, “[a]fter careful review of the [February 19, 2013] 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.”

The FISA court asked for the combined brain power of the DOJ, Executive Branch and an unspecified number of "senior intelligence officials" to explain their thought process and got a lot of unintelligible mumbles and floor-staring in return.

Noting that “the government has provided no explanation of this conclusion,” the Court ordered the government to submit “a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.”

Duly chastened, the brain trust resorted to one of its favorites: making this info public would jeopardize ongoing investigations. But it conceded that the opinion could still be declassified if a sufficient amount of black ink is spilled. The FISC pressed harder, asking for narrower redactions that removed only the targets in question, rather than the accompanying language that would clarify the court's stance on the bulk collection issue. Surprisingly, despite its lack of practice with operating anything narrowly-defined or targeted, the government managed to come up with a redacted version that satisfied the unexpectedly demanding FISA court.

[T]he Court notes that releasing the February 19, 2013 Opinion pursuant to the Second Redaction Proposal achieves the basic objective sought by the movants: disclosure of the Court’s legal reasoning, to the extent that it can reasonably be segregated from properly classified facts. There is an inherent risk that the end product of such an exercise “may confuse or obscure, rather than illuminate, the decision[ ] in question.” In re Motion for Release of Court Records, 526 F. Supp.2d at 495. On balance, however, the Court is satisfied that publication of the February 19, 2013 Opinion in conformance with the Second Redaction Proposal would enhance, rather than detract from, public understanding of the Court’s reasoning as to the legal issues presented.

Well, I guess we'll see what it looks like when we get it. August 29th is deadline for the submission of a formally declassified version of the (supposedly) narrowly-redacted opinion. The FISA court then needs to give it a quick once-over before publishing it "immediately" to its website. I don't expect to see it any sooner than the end of this month, but we'll be taking a good look at it when it finally arrives.

Filed Under: bulk data collection, bulk phone records, doj, fisa court, fisc, foia, justification, legal justification, nsa, section 215

Court Tells DOJ To Cough Up The Other Secret Memos That Justify Killing People By Drone

from the no-more-hiding-death-from-the-skies-justification dept

Last week, we wrote about how the DOJ finally released (a heavily redacted) copy of its memo authorizing drone use for killing Americans (though, some have pointed out that the memo was written well after the US started trying to kill Americans with drones). More importantly, we noted that the memo actually pointed to another secret memo as part of the justification. It's secret memo on top of secret memo, all the way down. The ACLU went back to court to see about getting its hands on that other memo, and the court has now ordered the DOJ to cough up any such memos related to killing people with drones. Specifically, the judge has ordered the DOJ to provide:

Unredacted copies of the "other legal memoranda prepared by OLC and at issue here" that are the subject of the Mandate (hereinafter "The OLC Opinions")

Furthermore, the court is curious why the DOJ didn't provide those documents already. Thus, it also has asked the DOJ to provide a memo under seal explaining itself as to why it didn't already release those memos. The government now has three weeks to comply, though, I imagine the DOJ will try to come up with some way to protest all of this, because that's what the DOJ tends to do.

Filed Under: doj, drones, extrajudicial killing, legal justification, olc
Companies: aclu

FISA Court Waited Until After Snowden Leaks To Actually Explore If Bulk Phone Record Collection Was Legal

from the well-look-at-that dept

One of the most common defenses of the NSA's bulk phone record collection (in which they get access to the record of basically every phone call in the US) is that the program has been reviewed and reapproved by the FISA Court every few months. Especially after the ruling by Judge Richard Leon calling the program unconstitutional, defenders of the program kept insisting that "every other judge" who reviewed the program had found it legal, with basically all of those other judges being the FISA court. Just yesterday, for example, Attorney General Eric Holder claimed that "at least 15 judges on about 35 occasions have said that the program itself is legal."

Except... that's not actually true. We already wrote about yesterday's release of the PCLOB's scathing report on how the program was both illegal and unconstitutional, but wanted to highlight one key point from early in the report, in which the PCLOB notes that the FISC never even bothered to look at whether or not the program was really legal until after it hit the press when Snowden leaked the details to Glenn Greenwald and Laura Poitras.

The Section 215 telephone records program has its roots in counterterrorism efforts that originated in the immediate aftermath of the September 11 attacks. The NSA began collecting telephone metadata in bulk as one part of what became known as the President’s Surveillance Program. From late 2001 through early 2006, the NSA collected bulk telephony metadata based upon presidential authorizations issued every thirty to forty-five days. In May 2006, the FISC first granted an application by the government to conduct the telephone records program under Section 215. The government’s application relied heavily on the reasoning of a 2004 FISA court opinion and order approving the bulk collection of Internet metadata under a different provision of FISA.

On June 5, 2013, the British newspaper The Guardian published an article based on unauthorized disclosures of classified documents by Edward Snowden, a contractor for the NSA, which revealed the telephone records program to the public. On August 29, 2013, FISC Judge Claire Eagan issued an opinion explaining the court’s rationale for approving the Section 215 telephone records program. Although prior authorizations of the program had been accompanied by detailed orders outlining applicable rules and minimization procedures, this was the first judicial opinion explaining the FISA court’s legal reasoning in authorizing the bulk records collection. The Section 215 program was reauthorized most recently by the FISC on January 3, 2014.

We had noted earlier this week that the NSA had relied heavily on that 2004 opinion by Judge Colleen Kollar-Kotelly, which was not about the Section 215 program, but rather a different program to collect internet metadata (since discontinued). What many had suspected, but was not clearly stated until now, was that the FISA Court didn't actually bother to do any real analysis of the phone bulk collection data program until after it became public.

It was pretty clear when Judge Eagan's ruling was released in September, that it was written for a post-Snowden world, in which the FISC actually had to explain its bizarre contortionist explanation for how collecting every phone record could possibly be legal or Constitutional. But what wasn't quite known was that this was the first time a FISC judge had ever really bothered to look closely at the issue -- seven years after starting to reapprove the program, with no analysis at all, every three months.

So this idea that the program was approved by 15 judges on 35 occasions is not even close to accurate. What seems clear is that FISC judges more or less let this issue slide for seven years, assuming (based on nothing) that because of Judge Kollar-Kotelly's (already immensely troubling) ruling concerning internet metadata, involving a different authority, that the bulk phone records collection must also be legal under Section 215. It was only over the summer that Judge Eagan was given the unenviable task of trying to come up with an opinion to justify all of that in retrospect, which explains why the reasoning in the opinion was so laughable and easily poked full of holes by nearly everyone who looked at it -- including those more inclined to support the program.

Either way, it's fairly shocking that FISC basically didn't bother to explore the legal issue at all until called on it. It also shows (1) why what Snowden did was so important and (2) why having an adversarial process in place is also important.

Filed Under: claire eagan, colleen kollar-kotelly, eric holder, fisa court, fisc, legal justification, pclob, section 215