A bunch of civil liberties groups including the ACLU, the Electronic Privacy Information Center (EPIC), and The National Security Archive Fund (NSAF) brought suit under the Freedom of Information Act to try to pry lose the documents relating to
the Bush Adminstration’s policy of conducting surveillance of domestic communications without prior authorization of the Foreign Intelligence Surveillance Court (“FISA Court”).
You can read the court’s opinion here.
And you know what? They are making a bit of progress.
You see, the government made a Motion for Summary Judgement asking the court to throw out the FOIA request altogether. And the court REFUSED TO DO THAT.
Essentially the court said that “declaring ‘because we say so’ is an inadequate method for invoking” an exemption to FOIA that protects material that is privileged such as by the deliberative privilege or attorney/client privilege.
The decision is replete with criticism of the inadequacies of the government’s submission in opposition to turning over the material. As is often the case, all the best quotes are in the footnotes. My favorite? Footnote #5
NSA has designated these declarations as being subject to an exceedingly high level of secrecy under the Executive’s classification policies. See Def.’s Ex. G pp. 11-12 (Decl. of Rowan). Without expressing approval or disapproval of DOJ’s use of these ex parte declarations—and without opining regarding whether the declaration redactions are legitimately classified (beyond a measure of scepticism as to some portions thereof)—the court does express substantial frustration with one aspect of the Executive’s approach to this information: In part for purposes of this case, this judicial officer had his law clerk cleared through an extensive, high-level background investigation so that the clerk would have access to classified information, and specifically the documents in this case. Notwithstanding the clearance obtained, it has become apparent that the Executive will not grant the clerk access to the classified declarations filed here, at least not in the absence of vociferous resistance from this judicial officer. This stance is baffling and has been significantly disruptive to the court’s review of this matter.
Biff! Bam!! Socko!!!
Holy Snarkfest Batman! I think the Judge has been on the receiving end of the Senator Rockefeller treatment!
Remember Senator Rockefeller got a briefing on this program, but was not allowed to discuss it with anyone, even the people on his staff with high level security clearances; clearances they had obtained so they could work on his matters from the Senate Intelligence Committee?
And the briefing was so super secret, Sen Rocky had to handwrite a letter of complaint to Dick Cheney (Hmmm, why Cheney? she wonders) because he could not even have his secretary type the complaint letter.
Oh, and let’s not forget the guys and gals at the DOJ Office of Professional Responsibility who wrote a protest letter of their own saying they could not do their investigation because the WH was denying them the necessary security clearances.
Anyway, bottom line. DOJ and the Executive Office of the President may, (and I stress may—more rulings will be made in this case before anything actually changes hands) at the end of the day, be forced to hand over the President’s 45-day certifications and the legal opinions that went with them.
I can’t wait to dissect those opinions. Yeah, I’m talkin’ to you, John Yoo.
You wanna make somethin’ of it?
In other good news this week
NEW YORK – A federal court today struck down the amended Patriot Act’s National Security Letter (NSL) provision. The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.
Even if Congress won’t stand up for the separation of powers, the judicial branch has not completely forgotten. And here we have a judge who does not think the words “civil liberties” are grounds to wash someone’s mouth out with soap.
I’m doin’ a little happy dance!
Update: H/T to Marcy who gave me a link to some of the mischief that has been going on with the National Security Letters. Oh, a judge’s work is never done. At least not during this adminsitration.