Senator Wyden Warns That The Justice Department Is Lying To The Courts; Also Still Worried About Secret Law

from the keep-plugging-at-this dept

We've been noting for years: when Senator Ron Wyden says that (1) there's a secret interpretation of a law that is at odds with the public's understanding of it, or (2) that government officials are lying, you should pay attention. It may take a while, but it always comes out eventually that he's absolutely correct. For at least five years now, we've been posting semi-regular updates to Wyden calling out the government for its secret interpretations of the law, and some of that was proven entirely accurate thanks to the Snowden revelations concerning how the PATRIOT Act and the FISA Amendments Act had been interpreted. However, since the Snowden revelations, Wyden has made it clear that that's not all. In particular, he's spoken about a Justice Department legal opinion, written by John Yoo, that Wyden insists is important and should be revealed.

A year ago, we wrote about Wyden asking then Attorney General Eric Holder to release the document, which is currently the subject of a FOIA lawsuit filed by the ACLU. He's now asking yet again for it, in a new letter to Attorney General Loretta Lynch:

As you may be aware, I have previously written to the Department of Justice regarding a particular secret legal opinion from the DOJ's Office of Legal Counsel. which has now been the subject of a recent suit under the Freedom of information Act. This opinion remains classified, but it pertains to common commercial service agreements. The DOJ's motion to dismiss the now-pending FOIA case also noted that this opinion was signed by Deputy Assistant Attorney General John Yen and dated March 30, 2003.

As I have noted in previous correspondence with the DOJ, I believe that this opinion is inconsistent with the public's understanding of the law, and should be withdrawn. I also believe that this opinion should be declassified and released to the public, so that anyone who is a party to one of these agreements can consider whether their agreement should be revised or modified. For these reasons, I encourage you to direct DOJ officials to comply with the pending FOIA request.

As we noted in our previous coverage, the contents of this memo almost certainly impact the various cybersecurity issues, in particular the Cybersecurity law (a variation on CISA) that passed and became law late last year.

But, the much bigger news comes in the following paragraph, in which Senator Wyden says that the DOJ is lying to the court in trying to kill the ACLU's FOIA request:

Additionally, I am greatly concerned that the DOJ's March 7, 2016, memorandum of law contains a key assertion which is inaccurate. This assertion appears to be central to the DOJ's legal arguments, and I would urge you to take action to ensure that this error is correct.

I am enclosing a classified attachment which discusses this inaccurate assertion in more detail.

You can see the DOJ's memorandum of law here (or embedded below) to see if you can sniff out the "key assertion which is inaccurate." Marcy Wheeler, who is damn good at this stuff, has some suggestions and thoughts, though each has some caveats. Either way, just the fact that this is a guessing game is ridiculous. The fact that the DOJ appears to be purposely misleading the court is a travesty -- but one that has become all too common these days.

In the meantime, are there any legal opinions that John Yoo authored that didn't turn out to be absolutely horrific? He wrote the legal opinion that authorized torture. And just a few weeks ago, another one of his ridiculous legal opinions (from 2002) was released, revealing his absolutely ridiculous legal rationale for warrantless wiretapping. Yoo seemed to specialize in trying to paper over basically anything illegal that the government wanted to do.

Filed Under: eric holder, foia, john yoo, loretta lynch, olc, ron wyden, secret interpretation, secret law
Companies: aclu

George W. Bush Tried To Retroactively Declare Illegal, Unconstitutional NSA Surveillance Legal, Because He Said So

from the secret-laws,-secret-interpretations dept

When it comes to the NSA, we've been discussing just how dangerous it is when the government gets to put in place its own secret interpretation of laws that, when read by the public, appear to say something quite different than the secret interpretation. Otherwise you have secret laws, and that's no way to run an open Constitutional democracy. For many years, it's been known that in March of 2004 there was a hospital room showdown between then White House Counsel Alberto Gonzales (with White House Chief of Staff Andy Card) and (at the time, quite ill) Attorney General John Ashcroft and acting Attorney General James Comey, over whether or not to reauthorize some sort of surveillance program. Comey, Ashcroft, and then FBI Director Robert Mueller all threatened to resign over the issue, and eventually, we were told, President Bush overruled Gonzales and Card. We knew at the time that the dispute was over domestic surveillance and whether or not it was legal. More recently, it came out that it was over domestic collection of internet/email metadata. This was a program similar to the phone metadata program that was revealed by Ed Snowden, but for email/internet information.

However, in response to a FOIA lawsuit filed by the NY Times, late on Friday, the government declassified some more information about what happened, and it appears that George W. Bush tried to first retroactively "legalize" this pretty clearly unconstitutional domestic surveillance, by saying that he'd always meant that while the NSA could sweep up all metadata, it didn't technically "acquire" it until it did a search on it. Again, this is in direct contrast to what most people thought the law (and the 4th Amendment) says the government could do.

This happened on March 11th, the day after the hospital showdown. President Bush signed a new authorization for the mass surveillance of internet records, but first decided that the White House Counsel, Gonzales, could certify it by himself, rather than having the Attorney General sign it, as in the past. This new authorization, though, directly claims that the President can simply override the law, including the Foreign Intelligence Surveillance Act, which was put in place to limit the Executive Branch's ability to spy on Americans in the first place. Then there's the added language saying that the information is only actually "acquired" when its searched for even though it has already "retained" all the data. In other words, to get around the whole Constitution, Bush apparently just redefined the word acquire. And, to make this all the more obnoxious, while this language was only included for the first time on March 11th, the authorization claimed that Bush had really meant this to be the case all along. In short, the day after being told that the surveillance on Americans' internet metadata was likely unconstitutional, President Bush (though put together by Dick Cheney's top legal beaver David Addington) decided to fix all that by signing a new authorization that redefined a basic English word ("acquire") and then retroactively say that this new definition applied backwards on all previous authorizations to spy on Americans, pretending that this magic incantation suddenly made it all Constitutional.

Apparently these legal shenanigans were enough to make then NSA Director Michael Hayden perfectly happy to keep spying on Americans in violation of both the FISA law and the Constitution. This whole thing seems pretty horrific all around. The whole point of FISA was to restrict the government from spying on Americans. And, yes, we know that the past two administrations have basically tapdanced their way around that, but now we're getting more details on exactly how. It starts with John Yoo insisting that the President can basically do whatever the fuck he wants because it's "wartime" (never mind that Congress never officially declared war...), and then that the President can just override FISA because he says so. Then, let's add into that the fact that the President (with help from David Addington) can apparently just redefine plain English words, in order to make illegal and unconstitutional surveillance of Americans appear legal, but, even more crazy, is that he can claim this new definition applies retroactively, after people realize that they may be on the hook for a few years worth of unconstitutional surveillance.

And, again, the folks who did all this keep telling us that we should just "trust them" because they're doing everything to keep us safe.

There are some things that it's entirely reasonable to keep secret if you're a government. But your secret definition of a law that anyone can read -- as well as your actions retroactively pushing that unique definition back historically, do not seem like the kinds of things that should be kept secret.

Filed Under: 4th amendment, alberto gonzales, andy card, david addington, george w. bush, internet metadata, james comey, john yoo, metadata, nsa, privacy, retroactive, richard ashcroft, secret interpretation, secret law, surveillance

Feds Agree To Release Redacted Interpretation Of PATRIOT Act That A Month Ago It Said Could Not Be Revealed

from the ch-ch-changes dept

A month ago, we wrote about how the DOJ had told the FISA Court (FISC) that even though the court had said that its own rulings, which secretly interpreted the PATRIOT Act to allow for the bulk collection of certain information under Section 215 of the act, should be declassified in the wake of all the Snowden revelations, the DOJ had determined that it didn't want to release the ruling. Let's repeat the details here: (1) FISA Court issues secret ruling that totally reinterprets Section 215 of the PATRIOT Act in a manner that appears to be quite different than any plain language reading. (2) Snowden leaks a bunch of documents that reveal the existence of certain bulk data collection which has everyone up in arms. (3) FISA Court itself says that more information is a good thing for debate, and that it would like to release the ruling in question, asking the DOJ to do some redactions as necessary. (4) The DOJ says, well, given the choice, we'd just as soon redact the whole damn thing. (5) The FISA Court says, "Come again? You need to explain that some more."

Then, late on Friday, when the DOJ had to give its more detailed explanations, it suddenly reversed its position. It now says that it will drop its objection to the ruling being published, though there will be redactions. The DOJ claims that its initial reaction wasn't just to hide the full ruling, but that there's an ongoing investigation that it involves:

In its latest filing, the Justice Department explained the reason for its initial reluctance to have the opinion published: It relates to the subject of an FBI counterterrorism investigation. Some information in the opinion could tip off the subject or his associates, the Justice Department said.

"However, upon review and as a discretionary matter," the government said, it decided to drop its objection to the court publishing parts of the opinion, as long as they're not classified and don't jeopardize the investigation.

Of course, this suggests that their initial response, trying to block the release of any part of the decision was the typical kneejerk reaction of government officials to "well, keep this secret."

Filed Under: doj, fisa court, fisc, patriot act, secret interpretation, section 215

FISA Court Says DOJ's Claim That It Can't Reveal Secret Interpretation Of The Law Is Wrong

from the onward dept

We've written a few times about the EFF's lawsuit against the government, trying to reveal the FISA Court's secret interpretation of the FISA Amendments Act (which is at the core of the NSA surveillance dragnet of all phone record data). The DOJ has warned how this would be the end of the world and, more recently, said that it can't reveal the ruling because the FISA court has said that it must be secret, while an earlier ruling from the FISA court said that the FISA court can't reveal such rulings -- only the DOJ can. The EFF sought clarification, and now the FISA court has more or less said that the DOJ's argument is full of it, and yes, the DOJ can reveal such things without violating the laws protecting FISA court rulings.

The Court disagrees with the Government that FISC Rule 62 prohibits the disclosure of the copies of the FISC Opinion to EFF under FOIA.... The Government contends that Rule 62 has the effect of placing copies of the Opinion in its possession "under this Court's seal."... The term "seal," however, does not appear in Rule 62, and contrary to the Government's contention, Rule 62 neither explicitly nor implicitly places the Government's copies of the Opinion "under seal."

Rule 62 contains four subsections, all of which generally concern the "Release of Court Records," but each address a distinct situation... None of these provisions is applicable here.

This doesn't mean the case is over, but it does mean that the DOJ can no longer use the excuse that even if it's required to disclose the FISC ruling under the FOIA that it can't because FISC rulings are secret under that FISC Rule 62.

Filed Under: doj, fisa, fisa amendments act, foia, secret interpretation
Companies: eff

NYTimes Sues The Federal Government For Refusing To Reveal Its Secret Interpretation Of The PATRIOT Act

from the secret-laws-and-secret-interpretations dept

We've been covering for a while now how Senators Ron Wyden and Mark Udall have been very concerned over the secret interpretation the feds have of one piece of the PATRIOT Act. They've been trying to pressure the government into publicly explaining how they interpret the law, because they believe that it directly contrasts how most of the public (and many elected officials) believe the feds are interpreting the law. While the two Senators continue to put pressure on the feds and to hint at the feds' interpretation, just the fact that the government won't even explain its own interpretation of the law seems ridiculous.

Given all of this, reporter Charlie Savage of the NY Times filed a Freedom of Information Act request to find out the federal government's interpretation of its own law... and had it refused. According to the federal government, its own interpretation of the law is classified. What sort of democracy are we living in when the government can refuse to even say how it's interpreting its own law? That's not democracy at all.

Julian Sanchez points us to the news that Savage and the NY Times have now sued the federal government for not revealing its interpretation of the PATRIOT Act, pointing out that if parts of the interpretation contain classified material, the Justice Department should black that out and reveal the rest, but simply refusing to reveal the interpretation entirely is a violation of the Freedom of Information Act. You can bet that the feds will do everything they can to get out of this lawsuit, just as they did with the various lawsuits concerning warrantless wiretapping. Here's hoping the court systems don't let them. No matter what you think of this administration (or the last one) and how it's handling the threat of terrorism, I'm curious how anyone can make the argument that the US government should not reveal how it interprets the very laws under which it's required to operate.

Filed Under: charlie savage, doj, extension, freedom of information, mark udall, oversight, patriot act, ron wyden, secret interpretation, wiretaps