Statement by the ODNI and the U.S. DOJ on the Declassification of Documents Related to the Protect America Act Litigation September 11, 2014
What better way to mark the anniversary of 9/11 than with a fuller account of another attack on the United States of American and its citizens. This attack not by a small band of criminals but a betrayal of the United States by those sworn to protect the rights of its citizens.
From the post:
On January 15, 2009, the U.S. Foreign Intelligence Surveillance Court of Review (FISC-R) published an unclassified version of its opinion in In Re: Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (Foreign Intel. Surv. Ct. Rev. 2008). The classified version of the opinion was issued on August 22, 2008, following a challenge by Yahoo! Inc. (Yahoo!) to directives issued under the Protect America Act of 2007 (PAA). Today, following a renewed declassification review, the Executive Branch is publicly releasing various documents from this litigation, including legal briefs and additional sections of the 2008 FISC-R opinion, with appropriate redactions to protect national security information. These documents are available at the website of the Office of the Director of National Intelligence (ODNI), www.dni.gov; and ODNI’s public website dedicated to fostering greater public visibility into the intelligence activities of the U.S. Government, IContheRecord.tumblr.com. A summary of the underlying litigation follows.
In case you haven’t been following along, the crux of the case was Yahoo’s refusal on Fourth Amendment grounds to comply with a fishing expedition by the Director of National Intelligence and the Attorney General for information on one or more alleged foreign nationals. Motion to Compel Compliance with Directives of the Director of National Intelligence and Attorney General.
Not satisfied with violating their duties to uphold the Constitution, the DNI and AG decided to add strong arming/extortion to their list of crimes. Civil contemp fines, fines that started at $250,000 per day and then doubled each week thereafter that Yahoo! failed to comply with the court’s judgement were sought by the government. Government’s Motion for an Order of Civil Contempt.
Take care to note that all of this occurred in absolute secrecy. Would not do to have other corporations or the American public to be aware that rogue elements in the government were deciding what rights citizens of the United States enjoy and which ones they don’t.
You may also want to read Highlights from the Newly Declassified FISCR Documents by Marc Zwillinger and Jacob Sommer. They are the lawyers who represented Yahoo in the challenge covered by the released documents.
We all owe them a debt of gratitude for their hard work but we also have to acknowledge that Yahoo, Zwillinger and Sommer were complicit in enabling the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Court of Review (FISCR) to continue their secret work.
Yes, Yahoo, Zwillinger and Sommer would have faced life changing consequences had they gone public with what they did know, but everyone has a choice when faced with oppressive government action. You can, as the parties did in this case and further the popular fiction that mining user metadata is an effective (rather than convenient) tool against terrorism.
Or you can decide to “blow the whistle” on wasteful and illegal activities by the government in question.
Had Yahoo, Zwillinger or Sommer known of any data in their possession that was direct evidence a terrorist attack or plot, they would have called the Office of the Director of National Intelligence, or at least their local FBI office. Yes? Wouldn’t any sane person do the same?
Ah, but you see, that’s the point. There wasn’t any such data. Not then. Not now. Read the affidavits, at least the parts that aren’t blacked out and you get the distinct impression that the government is not only fishing, but it is hopeful fishing. “There might be something, somewhere that somehow might be useful to somebody but we don’t know.” is a fair summary of the government’s position in the Yahoo case.
A better way to commemorate 9/11 next year would be with numerous brave souls taking the moral responsibility to denounce those who have betrayed their constitutional duties in the cause of fighting terrorism. I prefer occasional terrorism over the destruction of the Constitution of the United States.
You?
I started the trail that lead to this post from a tweet by Ben Gilbert.