Keep in mind that the FISA Amendments Act was recently reauthorized for another five years, thus enabling even more illegal warrantless surveillance – which is growing at exponential rates.
Some might find it noteworthy that anything was released at all given the fact that a federal judge ruled the Obama administration never has to explain why they claim it is legal to assassinate Americans without charge or trial, while still being able to claim it is legal to do so.
The so-called compliance with the EFF’s FOIA request is nothing short of laughable. Even when they claim to be “responsive” to the request, everything except a single sentence and the cover page has been redacted from the document.
To make matters even more absurd, the single sentence that has not been removed reads, “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.”
Contrary to the misleading headline of Tech Dirt’s article, which indicates that the EFF received a document about the secret interpretation of FISA, the EFF revealed, “the government’s secrecy claims are so extreme that it failed to release, even in entirely redacted form, the actual FISC opinions EFF requested.”
“The records released by the government were just summaries (albeit wholly-redacted ones) of those FISC opinions that were provided to Congressional intelligence committees,” Mark Rumold adds, writing for the EFF.
The government’s position on this law is nothing short of mind bending. Despite the fact that the Foreign Intelligence Surveillance Court (FISC) opinions remain completely secret, both the executive branch and individuals in the Senate have claimed that the secret opinions do not constitute “the law” or “secret law.”
Senator Dianne Feinstein, for example, when opposing the amendment to the FISA Amendments Act proposed by Senator Jeff Merkley which would given at least a slight bit of exposure to the secret law, made some quite nonsensical statements.
“Nevertheless, I am concerned that what is happening is the term ‘secret law’ is being confused with what the Foreign Intelligence Surveillance Court issues in the form of classified opinions based on classified intelligence programs,” Feinstein said.
The EFF points out that Feinstein’s statement is strikingly similar to that of the Department of Justice in a brief issued in the EFF’s PATRIOT Act Section 215 FOIA case. That case was also dealing with a secret interpretation of a surveillance law.
In the brief, the Department of Justice claimed that the EFF has attempted to “conflate the meaning of the word ‘secret’ in the phrase ‘secret law’ with the use of the word ‘secret’ for national security purposes.”
Yet, as the EFF rightly points out, such a claim is without merit since, “this much is clear: when a court issues an opinion containing a significant interpretation of a public statute, that court’s opinion is the law.”
“When the court’s opinion is withheld from the public, that opinion is a ‘secret,’ even if the statute the opinion interprets is already publicly available,” they continue. “Because a court’s opinion constitutes the ‘law,’ refusing to disclose those opinions to the public results in ‘secret law.’”
If you’re confused, you should be.
The simple fact is this: since the interpretation of the law is secret and the interpretation essentially becomes the law, the law itself is secret. Why the government claims they have the ability to keep the law secret is wholly irrelevant.
The EFF rightly contends that the only relevant issue is the public disclosure of the law. In this case, the government is doing everything they can, even responding to FOIA requests in an absurd manner such as this, to avoid such disclosure.
I must say that I agree with the EFF in joining “Senators Merkley, Wyden, Udall, Paul, and the other 33 Senators that voted to support this simple principle: when the government interprets federal surveillance law in a way that fundamentally affects citizens rights, that interpretation must be disclosed.”
While the battle was lost in Congress in attempting to get some semblance of transparency before the legislation was reauthorized in 2012, groups like the EFF are continuing to fight for the public’s right to know in court.
I would argue, however, that just fighting this battle in the courts is not enough. This battle must also be fought in the court of public opinion. Without garnering the support of everyday people who are having their rights trampled upon, the government likely will be able to continue to flout the law in ways as brazen as this.
It seems that the best way to accomplish that is, at least in my estimation, to educate the public on this secret law, how it is being used, and just how illegal it is. The public must know just how little the government cares about their rights and how laughable their so-called transparency really is.
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