June 10, 2013

Justice Department Fights Release Of Secret Court Opinion On Law That Underpins PRISM Program

http://www.huffingtonpost.com/2013/06/07/justice-department-prism_n_3405101.html

Here's the ball being hidden in the all frantic spinning that there's nothing to see here.

The administration -- this one, not the last one -- has already been found to have broken the law that it is using in the secret PRISM program. Of course, we didn't get to see the details of what was done wrong, because all of that is ... wait for it ... also a "secret."

There is a FISA court ruling explaining how it did that, and presumably laying out not only what was done wrong, but what can legally be done going forward. The administration doubtless contends that the bad stuff all started under Bush, and that it's now complying with that order.

But we don't know what that compliance means, because DOJ is fighting tooth and nail not to disclose the ruling that found it was behaving illegally in the first place. In fact, (the article goes on to say) the administration has crafted an argument that NO COURT has the authority to unseal the FISA ruling about how it was breaking the law. In other words, we should never know what they were doing wrong in the first place, and should now simply trust that they've stopped.

Therefore, examining what PRISM is collecting now raises (re-raises, if we must) the question of the rules under which the vast electronic surveillance program is actually operating. That's the actual issue. Not that we have surveillance, not that it's been ruled on by FISA courts, but how the administration is complying with a secret finding that it was NOT complying with the law in the continually expanding surveillance being conducted. And they don't want to tell how they're complying, or let anyone examine their logic.

So, no, the entire issue is not a Republican plot, or Greenwald being a Libertarian hater, or "Cheerios racists," or just the rantings of a disgruntled temp worker. But Greenwald's piece IS just tangential to the real problem. The big panic in the administration is that he's tugging on the corner of a very uncomfortable blanket, under which resides a classically Bush-esque regime of secret interpretations of the laws which are supposed to protect us from unconstitutional intrusions, but which can also easily hide government overreach, on the theory that even talking about it threatens national security.

All of this about the details of how it's being done now, while offered to "debunk" the recent stories, are things they did not want to discuss at all, even though it's all presumably been tweaked because it was illegal in the first place. So it's a bit much to archly dismiss the new reporting as non-news, given it all relates to what has been, at some point, an illegal government program that has supposedly been secretly corrected to comply with a secret court ruling, that the administration is currently arguing we should never see.

The key problem remains the one we all reacted to under Bush, which is that the executive cannot self-police domestic surveillance or other constitutionally sensitive programs under the idea that the existence of worldwide terrorism trumps all the rules.

As long as the entire legality of what's being done is secret, we can never tell whether the secrets are being kept for "national security" as claimed, or simply to cover up wrongdoing.

Because secrecy conveniently accomplishes both.