Everyone gets to know what the law is...oh, wait, nope.

[about_average]

The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court’s earlier decisions, much less effectively respond to DOJ’s argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security.

The court disagreed in several respects. It found that the court’s rules and Section 702 prohibited the documents’ release. It also rejected the provider’s claim that the Constitution’s Due Process Clause entitled it to the documents.

The opinion goes on: “Beyond what is compelled by the Due Process Clause, the Court is satisfied that withholding the Requested Opinions does not violate common-sense fairness.” This was because the Court believed that the DOJ had accurately represented the rulings in its legal briefs and did not mislead the provider about what those rulings said.

- https://www.eff.org/deeplinks/2017/...nce-order-court-denied-it-access-relevant-law

I'm.....just....speechless.

 

[HisArpy]

- https://www.eff.org/deeplinks/2017/...nce-order-court-denied-it-access-relevant-law

I'm.....just....speechless.

Sealed from public scrutiny means sealed from public scrutiny. If you need the information contained in the sealed documents and you can't have access, you find it someplace else. If you can't, at that point either concede or lose.

There is no "Right to Know".

 

[about_average]

Sealed from public scrutiny means sealed from public scrutiny. If you need the information contained in the sealed documents and you can't have access, you find it someplace else. If you can't, at that point either concede or lose.

There is no "Right to Know".

Yup, let's trust the government to tell us if a law being used against us actually applies to us. We have no reason to need to know if a law is applicable or not.

 

[HisArpy]

Yup, let's trust the government to tell us if a law being used against us actually applies to us. We have no reason to need to know if a law is applicable or not.

You have it wrong.

If you believe that the law is being unfairly used against you, then your option is to sue for an injunction.

This is the law.

The grounds for the injunction could be, as probably was in this case, equal protection and an "as applied" challenge.

From there, the gov gets to file their response. In their response they will cite to cases which support their position.

You get to reply. In your brief you get to cite to cases which rebut the gov's argument. The cases you cite to can be anywhere you can find them as authority. You can also cite to books and treatises.

If the gov says: "Well, we have these secret FISA Court opinions which say that...." you get to search for opinions which say the opposite. IF you find something from, say, the US Supreme Court which contradicts the gov's citation, you can certainly cite to it.

That's the way it works. You don't get to have access to sealed information if you're not cleared for it.

Though I do agree that the FISA Court opinions shouldn't be sealed from public scrutiny, that's the way it is. Until the FISA Court is abolished as anathema to our Constitution and our way of life, it is the way it will remain.

Interesting tidbits (and you can think them partisan or not as you choose):
The FISA Act was signed in to law by Jimmy Carter in 1978.
There are now 11 judges for the FISC, up from 7 as originally set by the Act.
Currently the judges who get appointed to the Court are being appointed by US Supreme Court Chief Justice John Roberts.

 

[Colonel Hogan]

- https://www.eff.org/deeplinks/2017/...nce-order-court-denied-it-access-relevant-law

I'm.....just....speechless.

Well, as the tech-head geeks like to say: "That's not a bug; that's a feature!"

Yup, let's trust the government to tell us if a law being used against us actually applies to us. We have no reason to need to know if a law is applicable or not.

Three points:

1. Prior to FISA and the FISA Courts (FISC), there was NO judicial structure or procedure for even handling cases of this type. Now there is, and the aggrieved party had its day in court under those applicable procedural rules, which are necessarily far different than what you or I would operate under in a normal civil suit.

2. Since this IS a civil suit, it is basically administrative rather than criminal law. That also ratchets things down a notch.

3. And speaking of "procedural rules," here is the operative one from the declassified text of the ruling that you neglected to point out:

"Except as otherwise ordered, if the government files ex parte a submission containing classified information, the government must file and serve on the non-governmental party an unclassified redacted version. The unclassified version, at a minimum, must clearly articulate the government's legal arguments." FISC Rule 7(j)

https://www.documentcloud.org/documents/3865012-Eff-16-Cv-02041hsg-Doc-12-06-13-17-Redacted.html

The court held that the government met that obligation. So much for not knowing what the law is.

But as long as you want to whine about something, how about the fact that the redacted version of the FISC opinion conceals the name of the party which filed the denied motion? That means they can't even publicly bitch about having lost their motion -- not even at home to their spouses over dinner.

 

[about_average]

The court held that the government met that obligation. So much for not knowing what the law is.

How could they know what the law was, they weren't allowed to see the law being applied.
I mean, aside from the law that lets the court not tell them what the law is.

As for the various rulings, I can understand the argument for keeping those secret. On the other hand there's the fact the the defendant's lawyer had top secret clearance, so it's not like he was likely to go blabbing it all over. More likely they'd have read it, then told the client, "Sorry, you're fucked" or "Ok, we're going to really fight this because they are way overreaching."

For those who say, "well, so what?" I have to wonder how they'd like it if they were being forced to do something under a law they weren't allowed to see.

IMO such things go hand in hand with having property and money seized because law enforcement thinks you might be guilty of drug offenses and the only way to get it back is to prove a negative. Or the fact that you can be added to the no-fly list and it's next to impossible to find out why.

 

[Colonel Hogan]

How could they know what the law was, they weren't allowed to see the law being applied.
I mean, aside from the law that lets the court not tell them what the law is.

As for the various rulings, I can understand the argument for keeping those secret. On the other hand there's the fact the the defendant's lawyer had top secret clearance, so it's not like he was likely to go blabbing it all over. More likely they'd have read it, then told the client, "Sorry, you're fucked" or "Ok, we're going to really fight this because they are way overreaching."

For those who say, "well, so what?" I have to wonder how they'd like it if they were being forced to do something under a law they weren't allowed to see.

IMO such things go hand in hand with having property and money seized because law enforcement thinks you might be guilty of drug offenses and the only way to get it back is to prove a negative. Or the fact that you can be added to the no-fly list and it's next to impossible to find out why.

Go back and read what I quoted: "The unclassified version, at a minimum, must clearly articulate the government's legal arguments." FISC Rule 7(j).

That "unclassified version" that "clearly articulates....the legal arguments" essentially states what the law IS, since the court ruled in favor of the government. Since you admit to an understanding of why the rulings need to be kept secret, it should be fairly easy for you to understand that FISC Rule 7(j) is the most reasonable compromise to maintaining that secrecy AND providing reasonable legal guidance to the defense.

I can only surmise that under FISC rules the security clearance of the attorney was irrelevant. The court has to follow the procedural rules governing it. They don't get to make them up as they go along just because it seems reasonable to you. These are national security issues at stake, and your analogies to drug property seizures and being placed on a no-fly list are woefully misplaced. THOSE excesses I might actually tend to agree with you on. They are not on a par with the wisdom of protecting intelligence secrets.

 

[about_average]

I'm not suggesting the court did anything wrong under they current rules, just that there appears to be a serious problem with the current rules.

As for the lawyer, I'd be willing to dollars to doughnuts that the lawyer would be less likely to reveal national security secrets than our president.
I'd be surprised if the ISP's lawyer would reveal any national secrets in a fit of bragging. People who earn the clearance generally take it seriously.

Maybe there needs to be a pool of lawyers with the needed clearance.

I wasn't saying the other things are on par with this case, just that they are similar in attitude.

 

[Colonel Hogan]

I'm not suggesting the court did anything wrong under they current rules, just that there appears to be a serious problem with the current rules.

As for the lawyer, I'd be willing to dollars to doughnuts that the lawyer would be less likely to reveal national security secrets than our president.
I'd be surprised if the ISP's lawyer would reveal any national secrets in a fit of bragging. People who earn the clearance generally take it seriously.

Maybe there needs to be a pool of lawyers with the needed clearance.

I wasn't saying the other things are on par with this case, just that they are similar in attitude.

And you might well convince me to tighten that loophole before we tackle the problem of drug property seizures and the no-fly list.