Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance

[CuteOldGuy]

The Administration doesn't want you to know that what they are doing is unconstitutional. I mean, it doesn't bother them that it is unconstitutional, they just don't want you to know. So, the Constitution doesn't really matter, only your knowledge of it matters, and they want to make sure you don't know what it means. That way, they can violate it, and you will still support them.

This is from that far right-wing rag, Mother Jones: [<<<sarcasm]

In the midst of revelations that the government has conducted extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

This important case—all the more relevant in the wake of this week's disclosures—was triggered after Sen. Ron Wyden (D-Ore.), [OP Note: Wyden is a good guy.] a member of the Senate intelligence committee, started crying foul in 2011 about US government snooping. As a member of the intelligence committee, he had learned about domestic surveillance activity affecting American citizens that he believed was improper. He and Sen. Mark Udall (D-Colo.), another intelligence committee member, raised only vague warnings about this data collection, because they could not reveal the details of the classified program that concerned them. But in July 2012, Wyden was able to get the Office of the Director of National Intelligence to declassify two statements that he wanted to issue publicly. They were:

* On at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.

* I believe that the government's implementation of Section 702 of FISA [the Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

For those who follow the secret and often complex world of high-tech government spying, this was an aha moment. The FISA court Wyden referred to oversees the surveillance programs run by the government, authorizing requests for various surveillance activities related to national security, and it does this behind a thick cloak of secrecy. Wyden's statements led to an obvious conclusion: He had seen a secret FISA court opinion that ruled that one surveillance program was unconstitutional and violated the spirit of the law. But, yet again, Wyden could not publicly identify this program.

"When the government hides court opinions describing unconstitutional government action, America’s national security is harmed," argues the Electronic Frontier Foundation.

Enter the Electronic Frontier Foundation, a public interest group focused on digital rights. It quickly filed a Freedom of Information Act request with the Justice Department for any written opinion or order of the FISA court that held government surveillance was improper or unconstitutional. The Justice Department did not respond, and EFF was forced to file a lawsuit a month later.

It took the Justice Department four months to reply. The government's lawyers noted that they had located records responsive to the request, including a FISA court opinion. But the department was withholding the opinion because it was classified.

EFF pushed ahead with its lawsuit, and in a filing in April, the Justice Department acknowledged that the document in question was an 86-page opinion the FISA court had issued on October 3, 2011. Again, there was no reference to the specific surveillance activity that the court had found improper or unconstitutional. And now the department argued that the opinion was controlled by the FISA court and could only be released by that body, not by the Justice Department or through an order of a federal district court. In other words, leave us alone and take this case to the secret FISA court itself.

This was puzzling to EFF, according to David Sobel, a lawyer for the group. In 2007, the American Civil Liberties Union had asked the FISA court to release an opinion, and the court had informed the ACLU to take the matter up with the Justice Department and work through a district court, if necessary.

So there was a contradiction within the government. "It's a bizarre catch-22," Sobel says. On its website, EFF compared this situation to a Kafka plot: "A public trapped between conflicting rules and a secret judicial body, with little transparency or public oversight, seems like a page ripped from The Trial."

Before EFF could get a ruling on whether this opinion can be declassified and released, it had to first sort out this Alice in Wonderland situation. Consequently, last month, it filed a motion with the FISA court to resolve this aspect of the case. "We want the FISA court to say that if the district court says the opinion should be released, there is noting in its rules that prevents that," Sobel says. Then EFF can resume its battle with the Justice Department in federal district court for the release of the opinion. The Justice Department was ordered by the FISA court to respond by June 7 to the motion EFF submitted to the FISA court.

Currently, given the conflicting positions of the Justice Department and the FISA court, Sobel notes, "there is no court you can go to to challenge the secrecy" protecting an opinion noting that the government acted unconstitutionally. On its website, EFF observes, "Granted, it's likely that some of the information contained within FISC opinions should be kept secret; but, when the government hides court opinions describing unconstitutional government action, America's national security is harmed: not by disclosure of our intelligence capabilities, but through the erosion of our commitment to the rule of law."

As news reports emerge about the massive phone records and internet surveillance programs—each of which began during the Bush administration and were carried out under congressional oversight and FISA court review—critics on the left and right have accused the government of going too far in sweeping up data, including information related to Americans not suspected of any wrongdoing. There's no telling if the 86-page FISA court opinion EFF seeks is directly related to either of these two programs, but EFF's pursuit of this document shows just how difficult it is—perhaps impossible—for the public to pry from the government information about domestic surveillance gone wrong.

Seriously, do you really think the government gives a damn about you, or your liberty? If so, you are seriously delusional. Seek help.

http://www.motherjones.com/politics/...-court-opinion

[Guest040616]

Another thread started by the poster who hates anything and everything American.

[CuteOldGuy]

If the Constitution is American, wouldn't violating it be unAmerican? It looks like I'm the American, standing up for the Constitution, and you are unAmerican for supporting the administration's effort to cover up their unconstitutional wrongdoing.

BiSex. Unamerican. We all knew.

[Guest040616]

Originally Posted by CuteOldGuy

If the Constitution is American, wouldn't violating it be unAmerican? It looks like I'm the American, standing up for the Constitution, and you are unAmerican for supporting the administration's effort to cover up their unconstitutional wrongdoing.

Another post by the poster who hates anything and everything American.

[CuteOldGuy]

Originally Posted by bigtex

Another post by the poster, me, who hates anything and everything American.

Fixed that for you, BiSex. Now it makes sense.

No charge!!

[Chica Chaser]

MotherJones.....heh
Pretty bad when you can't even get them on your side.

[Guest040616]

Originally Posted by Chica Chaser

MotherJones.....heh
Pretty bad when you can't even get them on your side.

I don't know where he comes up with all of this shit. He has way too much free time on his hands!

[i'va biggen]

When he isn't chasing ducks around the park he is trolling the net for anything to smear America.

[Guest040616]

Originally Posted by i'va biggen

When he isn't chasing ducks around the park he is trolling the net for anything to smear America.

Jerry Fletcher is so very proud of Hanoi COG!

[i'va biggen]

bump

[CuteOldGuy]

Sounds like everyone is fine with the Justice Department operating outside the Constitution, and trying to keep it a secret.

You'll fit in well in the United Police State of Amerika.

[Guest040616]

Originally Posted by CuteOldGuy

You'll fit in well in the United Police State of Amerika.

You should know, COMRADE COG!

[CuteOldGuy]

You're right, BiSex. You refuse to oppose repressive government policies, and in fact support the destruction of liberty. You will fit in just fine.

[i'va biggen]

Originally Posted by CuteOldGuy

Sounds like everyone is fine with the Justice Department operating outside the Constitution, and trying to keep it a secret.

You'll fit in well in the United Police State of Amerika.

Mark Klein tried to warn in 2006 about it seems no one cared then..

[CJ7]

Originally Posted by CuteOldGuy

The Administration doesn't want you to know that what they are doing is unconstitutional. I mean, it doesn't bother them that it is unconstitutional, they just don't want you to know. So, the Constitution doesn't really matter, only your knowledge of it matters, and they want to make sure you don't know what it means. That way, they can violate it, and you will still support them.

This is from that far right-wing rag, Mother Jones: [<<<sarcasm]

In the midst of revelations that the government has conducted extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

This important case—all the more relevant in the wake of this week's disclosures—was triggered after Sen. Ron Wyden (D-Ore.), [OP Note: Wyden is a good guy.] a member of the Senate intelligence committee, started crying foul in 2011 about US government snooping. As a member of the intelligence committee, he had learned about domestic surveillance activity affecting American citizens that he believed was improper. He and Sen. Mark Udall (D-Colo.), another intelligence committee member, raised only vague warnings about this data collection, because they could not reveal the details of the classified program that concerned them. But in July 2012, Wyden was able to get the Office of the Director of National Intelligence to declassify two statements that he wanted to issue publicly. They were:

* On at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.

* I believe that the government's implementation of Section 702 of FISA [the Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

For those who follow the secret and often complex world of high-tech government spying, this was an aha moment. The FISA court Wyden referred to oversees the surveillance programs run by the government, authorizing requests for various surveillance activities related to national security, and it does this behind a thick cloak of secrecy. Wyden's statements led to an obvious conclusion: He had seen a secret FISA court opinion that ruled that one surveillance program was unconstitutional and violated the spirit of the law. But, yet again, Wyden could not publicly identify this program.

"When the government hides court opinions describing unconstitutional government action, America’s national security is harmed," argues the Electronic Frontier Foundation.

Enter the Electronic Frontier Foundation, a public interest group focused on digital rights. It quickly filed a Freedom of Information Act request with the Justice Department for any written opinion or order of the FISA court that held government surveillance was improper or unconstitutional. The Justice Department did not respond, and EFF was forced to file a lawsuit a month later.

It took the Justice Department four months to reply. The government's lawyers noted that they had located records responsive to the request, including a FISA court opinion. But the department was withholding the opinion because it was classified.

EFF pushed ahead with its lawsuit, and in a filing in April, the Justice Department acknowledged that the document in question was an 86-page opinion the FISA court had issued on October 3, 2011. Again, there was no reference to the specific surveillance activity that the court had found improper or unconstitutional. And now the department argued that the opinion was controlled by the FISA court and could only be released by that body, not by the Justice Department or through an order of a federal district court. In other words, leave us alone and take this case to the secret FISA court itself.

This was puzzling to EFF, according to David Sobel, a lawyer for the group. In 2007, the American Civil Liberties Union had asked the FISA court to release an opinion, and the court had informed the ACLU to take the matter up with the Justice Department and work through a district court, if necessary.

So there was a contradiction within the government. "It's a bizarre catch-22," Sobel says. On its website, EFF compared this situation to a Kafka plot: "A public trapped between conflicting rules and a secret judicial body, with little transparency or public oversight, seems like a page ripped from The Trial."

Before EFF could get a ruling on whether this opinion can be declassified and released, it had to first sort out this Alice in Wonderland situation. Consequently, last month, it filed a motion with the FISA court to resolve this aspect of the case. "We want the FISA court to say that if the district court says the opinion should be released, there is noting in its rules that prevents that," Sobel says. Then EFF can resume its battle with the Justice Department in federal district court for the release of the opinion. The Justice Department was ordered by the FISA court to respond by June 7 to the motion EFF submitted to the FISA court.

Currently, given the conflicting positions of the Justice Department and the FISA court, Sobel notes, "there is no court you can go to to challenge the secrecy" protecting an opinion noting that the government acted unconstitutionally. On its website, EFF observes, "Granted, it's likely that some of the information contained within FISC opinions should be kept secret; but, when the government hides court opinions describing unconstitutional government action, America's national security is harmed: not by disclosure of our intelligence capabilities, but through the erosion of our commitment to the rule of law."

As news reports emerge about the massive phone records and internet surveillance programs—each of which began during the Bush administration and were carried out under congressional oversight and FISA court review—critics on the left and right have accused the government of going too far in sweeping up data, including information related to Americans not suspected of any wrongdoing. There's no telling if the 86-page FISA court opinion EFF seeks is directly related to either of these two programs, but EFF's pursuit of this document shows just how difficult it is—perhaps impossible—for the public to pry from the government information about domestic surveillance gone wrong.

Seriously, do you really think the government gives a damn about you, or your liberty? If so, you are seriously delusional. Seek help.

http://www.motherjones.com/politics/...-court-opinion

cant be, you said it yourself ... the potus isn't obligated to uphold the constitution.