There has been a legal game unfolding before our very eyes for quite a while now.
Some remain gleefully glib about it. Others sternfully serious.
It's only our Constitution, and in particular our 4th Amendment claims to Freedom, that hang in the balance.
Rules, Due Process, Checks and Balances, presumptions of Non-guilt -- are these things "quaint and outdated" or vital protections of American Ideals?
Here's a quick recap of what the coaches, scouts, and bookies have been up to ... as the game has progressed, recently:
DOJ Reports: FISA Court Approved Every Federal Surveillance Request
by Joe Wolverton, II, J.D., thenewamerican.com -- 11 May 2013
[...]
As required by provisions of the Foreign Intelligence Surveillance Act Amendments of 2008 (FISA) and the Patriot Act (as amended in 2005), the Department of Justice revealed to Congress the end of last month the number of applications for eavesdropping received and rejected by the FISA court.
To no one’s surprise (least of all to the architects and builders of the already sprawling surveillance state), the letter addressed to Senator Harry Reid (D-Nev.) reports that in 2012, of the 1,789 requests made by the government to monitor the electronic communications of citizens, not a single one was rejected
Data mining revelation opens political Pandora's box
by Tom Cohen, CNN -- June 7, 2013
[...]
Udall and fellow Democratic Sen. Ron Wyden of Oregon warned last year that the American public "would be stunned to learn the details" of how the government was interpreting the Patriot Act.
"As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows," they wrote in a letter to Attorney General Eric Holder.
[...]
"I think that we've overreached," Sen. Mark Udall, a Colorado Democrat who has long pushed for greater transparency in the government's counter-terror efforts, told CNN. "I think that we ought to have this discussion and we can find the right balance. But if the people don't know, how do you have the discussion?"
The lop-sided saga of Domestic Surveillance vs the 4th Amendment continues ... even down to yesterday's wire (over the jump).
Any half-time wagers on who will win out in the end?
There are rays of hope for the "sternly serious" crowd. But the roiling thunderclouds on the horizon, do not look promising.
Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance
by David Corn, motherjones.com -- Jun. 7, 2013
[...] 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.
[...]
DoJ Fights to Stop Release of Secret Court Opinion on Unlawful Surveillance of Americans
by Ryan Gallagher, slate.com -- May 29, 2013
[...]
Last year, Sen. Ron Wyden, D-Ore., revealed that the Foreign Intelligence Surveillance Court had found “on at least one occasion” that the government had conducted spying that was “unreasonable under the Fourth Amendment,” which is designed to prevent unreasonable searches and seizures. Wyden said that the FISC, which operates largely in secret, had found that the government acted unconstitutionally in how it had implemented so-called “minimization procedures” intended to limit how data on Americans are collected and retained. The senator added that the government was found to have “circumvented the spirit” of the Foreign Intelligence and Surveillance Act, a controversial spy law that civil liberties groups claim effectively allows “dragnet surveillance.”
When Wyden revealed the FISC ruling on the unlawful snooping, he did not disclose details about exactly what the surveillance involved or how many Americans were affected. But his comment prompted the Electronic Frontier Foundation to take legal action in an attempt to obtain more information. After filing suit in a district court, the rights group successfully established earlier this year that the Justice Department holds an 86-page FISC opinion, issued on Oct. 3, 2011, which appears to be the case Wyden cited. Now the EFF wants that opinion to be made public.
The DoJ said in a court memorandum filed in the district court case that it should not have to publish the secret opinion because doing so could cause “exceptionally grave and serious damage” to national security by revealing sources and methods. In addition, the DoJ claims that it could not elect to release the opinion even if it wanted to because publication would have to be approved by the FISC judge who authored it. In response, EFF has taken up the case directly with the FISC, which is now considering whether to release the documents on the unlawful surveillance. Last week, FISC Judge Reggie Walton ordered the DoJ to respond by June 7 to a motion filed by EFF requesting the release of the opinion, giving the department a fresh opportunity to advocate for non-disclosure.
[...]
June 7, 2013?
Hey that was yesterday! So what did the DOJ rule with regards to FOI and Transparency vs the FISA rubber stamp process?
Any "2-minute-warning" wagers, on how this epic battle turns out?
In Secret Court, DOJ Fights Access to Surveillance Ruling
legaltimes.typepad.com -- June 07, 2013
Amid the national debate over privacy and surveillance, the Justice Department is fighting a civil liberties group's effort to obtain a copy of a lengthy, secret court ruling that declared government monitoring of communications unlawful.
The Justice Department today filed papers in the Washington-based Foreign Intelligence Surveillance Court, saying "there is good reason not to vacate the seal on the opinion." The ruling -- sealed by the surveillance court, and considered classified by the executive branch-- is at the center of a Freedom of Information Act case pending in Washington federal district court.
[...]
UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.
IN RE MOTION FOR CONSENT TO DISCLOSURE
OF COURT RECORDS OR, IN THE ALTERNATIVE,
A DETERMINATION OF THE EFFECT OF THE
COURT’S RULES ON STATUTORY ACCESS RIGHTS
Docket No.: Misc. 13-01
[June 7, 2013]
THE UNITED STATES’ OPPOSITION TO THE MOTION
OF THE ELECTRONIC FRONTIER FOUNDATION
JOHN P. CARLIN
Acting Assistant Attorney General for National Security
J. BRADFORD WIEGMANN
Deputy Assistant Attorney General
TASHINA GAUHAR
Deputy Assistant Attorney General
JEFFREY M. SMITH
NICHOLAS J. PATTERSON
U.S. Department of Justice, National Security Division
Attorneys for the United States of America
[...]
Movant seeks to obtain from the Government copies of an opinion of this Court which is currently subject to seal pursuant to this Court’s rules. This Court should deny the instant Motion both because it is outside this Court’s jurisdiction and because there is good reason not to vacate the seal on the opinion.
BACKGROUND
Movant Electronic Frontier Foundation brings the instant Motion seeking this Court’s intervention in support of Movant’s ongoing Freedom of Information Act (“FOIA”) lawsuit currently pending before Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia in which Movant contends that the U.S. Department of Justice has unlawfully withheld records responsive to its FOIA request.
[...]
ARGUMENT
The Motion at issue is outside the jurisdiction of this Court. This is not, as Movant suggests, a case about whether Movant has a legal right to this Court’s files; it is an action in aid of Movant’s FOIA suit against the Department of Justice seeking records from the Department’s files. This action is outside the inherent jurisdiction previously recognized by this Court with respect to its supervisory power over its own records and files. Moreover, even if this Court ad jurisdiction over this Motion, it should deny it, rather than allow another court to determine whether any portions of its opinion should be released under FOIA. Any such release would be incomplete and quite possibly misleading to the public about the role of this Court and the issues discussed in the opinion.
[...]
IV. The Fact That Movant May Be Unsuccessful in the District Court in Compelling the Department of Justice to Release a Classified, Sealed FISC Opinion Does Not Mean That Plaintiff Faces a “Catch-22”
Movant misinterprets FISC Rule 62(a) and its relation to FOIA, positing a “Catch-22” where none exists. In fact, it is well-established that requesters cannot receive records either from a district court or the Executive Branch when the records are under seal. The fact that there are two separate reasons why Movant cannot obtain the FISC opinion it seeks -- because it is properly classified by the Executive Branch and because it is under this Court’s seal -- does not imply a “Catch-22.”
[...]
But in any event, the United States has not asked this Court to hold that the Government may withhold the opinion pursuant to FOIA. That is a decision for Judge Jackson to make in the FOIA litigation pending before her. The United States is arguing here that this Court should, absent a dismissal on jurisdictional grounds, recognize that its opinion is under seal and decline to vacate the seal for the reasons stated above.
[...]
The United States agrees that a FOIA request and subsequent suit in the district court is the proper method for Movant to test whether it has a legal right to obtain the opinion. The Government has argued in the district court that Movant has no such right to obtain a classified, sealed FISC opinion. The fact that Movant lacks a legal right to obtain the document it seeks does not imply a “Catch-22.” Rather, as in Morgan and the other cases cited above, it indicates that neither this Court nor the Executive Branch is obliged under FOIA to release the opinion.
CONCLUSION
For the stated reasons above, the Court should deny the Motion.[4]
Well it would seem that the 4th Amendment
remains scoreless, despite these many well-meaning attempts at Transparency and Freedom of Information, to the contrary.
SO Mr Chief Executive, this Constitutional football would appear to have been fumbled again and kicked down the road, landing distinctly behind your 20-yard.
The clocking is ticking, the crowd is on their feet, some cheering, some crying ... so what will you do Sir?
Pick it up and run with it, or call in the best bench-warmers and punt?
It's only the Constitution, and the American way of life, that is on the line ...
Do the People have a right to know, or not? Those things that OUR Government does in OUR Names? Or Not?
If WE are the routine targets of warrantless wireless domestic dragnets -- well as Tom Cruise once said "we can handle it."
We American Citizens, were not "Mushrooms"^ afterall, despite all appearance to the contrary. At least that's NOT what we aspire to be, in spite the overwhelming odds against that eventual outcome.
We American Citizens, were better than that. Just check our history, as the epic saga rematches continue.
[^Mushrooms: Kept them in dark, and fed a steady diet of BS.]