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DOJ at it again, refuses to turn over documents in suit

Editor’s Note – Once again, the DOJ is committing ‘lawfare’, this time over documents it refuses to provide in a suit over FISA court/NSA requests by internet service providers and networks on publishing details on how many requests were made. Once again its ‘King’ Holder is playing games with the courts, selectively enforcing laws and playing fast and loose with rules of evidence. Impeachment anyone?

DOJ Refuses To Let Tech Companies See Legal Arguments It’s Making Against Them


impeach-eric-holderThe ongoing legal fight, in which a bunch of US tech and internet companies — namely Google, Facebook, Microsoft, Yahoo and LinkedIn — are suing the US government, claiming a First Amendment right to publish some details on the number of requests they get from the NSA under Section 702 of the FISA Amendments Act, as well as the number of users impacted by those requests, is getting ever weirder. The government had filed its response back at the end of September. And, you might notice, large portions of it are totally redacted. For example, here is page 13 of the document (though, numbered page 8):

Here is an example of the documents provided...At least they didn’t redact the page number

Here is an example of the documents provided…At least they didn’t redact the page number

Of course, stuff gets filed under seal all the time, and it’s not particularly uncommon to see redacted passages in legal documents — especially (obviously) when it has to do with matters of national security. But, here’s what’s different. Normally the opposing parties in the case are allowed to see the details of what’s redacted. Here, the DOJ is simply refusing to let the tech companies see its own argument.

In response, the companies have filed a pretty direct and somewhat angry motion, asking the FISA court to either let them see the arguments, or to strike the redacted portions from the DOJ’s motion. Basically, the DOJ is saying that it can make legal arguments that only the court can see, but which the tech companies suing it cannot see. That goes against every basic concept of due process.

The government has submitted a response and supporting declaration for ex parte, in camera review. It has given the providers only a heavily redacted version of its submissions, and it has rejected all requests for greater access.

Unless the government reconsiders its refusal to accommodate the providers’ legitimate need to understand the basis for the government’s response, the providers respectfully request that this Court strike the redacted portions of the government’s brief and supporting declaration.

The redacted version of the government’s submissions does not comply with Foreign Intelligence Surveillance Court Rule 7(j) because it does not “clearly articulate the government’s legal arguments,” as the rule requires. If the government’s interpretation of the rule were correct, the rule would violate both the First Amendment and the Due Process Clause. To avoid that result, the Court should construe the rule to require fuller disclosure to the providers.

Allowing the government to file an ex parte brief in this case will cripple the providers’ ability to reply to the government’s arguments and is likely to result in a disposition of the providers’ First Amendment claims based on information that the providers will never see. The providers do not dispute that in some cases it may be appropriate for this Court to consider ex parte filings. In this case, however, such a course is neither justified nor constitutional.

The providers already know the core information that the government seeks to protect in this litigation–the number of FISC orders or FAA directives to which they have been subject, if any. At issue here is only the secondary question whether the providers may be told the reason why the government seeks to keep that information a secret. The government has not argued that sharing those reasons with the providers or their counsel would endanger national security. Accordingly, unless the government allows the providers’ counsel to access its response, the Court should strike the redacted portions of the response.

The whole thing is really quite incredible. Our government is so focused on the secrecy of its secret laws and secret demands that it won’t even tell the companies fighting the secrecy the secret reasons it’s telling the court it has to keep stuff secret? How is that possibly consistent with basic due process under the law?

To see the full DOJ response in all its redacted glory and the angry motion that it elicited, they’re on the next page (along with some additional law-related stories from TechDirt)…



Posted by on November 15, 2013. Filed under Corruption. You can follow any responses to this entry through the RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.

2 Responses to DOJ at it again, refuses to turn over documents in suit

  1. Sam S

    The solution is easy. Members of the tech companies legal teams and executives need to be provided with security clearances (at the governments expense) so that they can see the opposition’s argument and respond in kind in a secret court. If the government cannot provide a reasonable am mount of clearances, only then should they be required to declassify the information. Unfortunately, if the subject matter truly is classified than this is the only solution. For those of us not in the know, it’s just too bad. At least we can know the system is fair if they made these changes. This is just bad parenting. Daddy won’t let let Mommy see the phone bill but swears there’s a perfectly good reason for a 500 dollar phone call to a 1-800 number… come on… it doesn’t mean the kids are gonna get to see it…

  2. Nationcrying

    Why is Eric Holder still around? He has obstructed Justice in so many different ways and scandals. Isn’t there ANYTHING Congress can do (if they would)

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