EFF: The Fourth Amendment Is Not Top Secret

EFF is requesting that the judge in its FOIA for the October 3, 2011 John Bates FISA Court opinion, Amy Berman Jackson, review the redactions currently in the document to ensure they are properly classified. (h/t Mike Scarcella) It argues the court should undertake such a review because disclosure of the things DOJ had previously claimed were Top Secret has now proven “the agency’s previous blanket withholding assertions were overbroad and wholly without merit.”

To support that case, they point to this passage originally withheld from production.

Upon even a cursory review of the Opinion, it is apparent, DOJ’s blanket exemption claims were far broader than the law allows. For example, this passage, according to the agency, was appropriately “classified at the TOP SECRET level” and withheld from the Opinion:

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Opinion at 67 (reciting Fourth Amendment); see also Bradley Decl., ¶ 5 (Opinion “withheld in full pursuant to FOIA Exemptions b(1) and b(3)”).

Now, I’m actually not sure about this argument. In recent years, after all, the Fourth Amendment has been almost entirely disappeared without a trace. I wouldn’t be surprised if the government had disappeared it as a conscious policy decision. So perhaps they really do maintain that the Fourth Amendment must now be hidden pursuant to the Executive Order governing classified information.

Technically, the government previously argued that revealing the existence and text of the Fourth Amendment would cause exceptionally grave harm to the United States — that’s what the Top Secret classification it withheld this material under means. [Update: Or, as Nigel puts it, that the opinion referenced the Fourth. Except that’s even more absurd because the FOIA was a response to Ron Wyden’s declassification of a statement that said the FISC had found in this opinion that the program violated the Fourth.]

We’ll see whether Judge Jackson agrees that was a reasonable claim.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

8 replies
  1. Peterr says:

    The last time I checked, the constitution had 27 amendments, but now that I think about it, the existence of additional Top Secret constitutional amendments would explain a helluva lot coming out of 1600 Pennsylvania Avenue over the last 12 years.

    Maybe John Yoo knew some things we didn’t know after all. You know, things like the amendment which overturned Youngstown v Sawyer.

  2. Peterr says:

    This is the meat of the filing:

    The dramatic change in DOJ’s position provides both EFF and the Court with unusually clear insight into the government’s previous withholding assertions. To the agency’s credit, substantial portions of the Opinion have now been publicly released, albeit belatedly. At the same time, though, the release of substantial portions of the Opinion severely undermines the credibility of DOJ’s assertions here: upon review, it is apparent that the agency’s previous blanket withholding assertions were overbroad and wholly without merit. In light of the demonstrated overbreadth of DOJ’s previous claims, neither EFF nor the Court can rely on the agency’s current representations with any confidence. Thus, EFF respectfully urges the Court to reject the presumption of good faith that might normally attach to agency declarations and, to ensure the validity of DOJ’s current averments, order the production of the Opinion for the Court’s in camera inspection.

    Emphasis added, to highlight the passage that ought to scare the bejesus out of the DOJ.

    The whole setup of FISC presumes good faith on the part of the government. If EFF succeeds in getting the judge to rule in their favor on this, every time the DOJ comes to FISC in the future, their usual “because we told you so” argument will be rejected.

    Even worse, think about the various state’s secret cases we’ve been through (and that continue to percolate). If the FISC goes on record as saying “we reject the presumption of good faith because of past bad faith representations” in this case, the DOJ is going to have a helluva hard time supporting their assertions of state secrets in any future cases in any federal court.

  3. OldVet says:

    When our representatives and Senators are wearing clown suits, it makes one wonder what sort of duds the Justices might wear to adjudicate this. It is the dog that didn’t……… (Top Secret).

  4. Nigel says:

    Technically, the government previously argued that revealing the existence and text of the Fourth Amendment would cause exceptionally grave harm to the United States

    Actually, technically the government previous argued that revealing the fact that the Opinion referenced the Fourth Amendment would cause exceptionally grave harm to the United States.

    It’s still utterly absurd, but it is at least possible to discern a twisted logic at work in the redaction.

  5. emptywheel says:

    @Nigel: Fair enough. Except for the fact that the FOIA referenced Wyden’s declassification of the statement that basically said the opinion found the program had violated the Fourth. So we already knew it did.

  6. Dan says:

    The 4th is being secretly held in indefinite detention at GITMO as an aider and abettor to democracy, er, terrorists, and is therefore a national security state secret.

  7. scribe says:

    This is hardly the first time DoJ’s done this. Their briefs and submissions in Jose Padilla’s case were riddled with redactions (particularly of cases they cited and parenthetical quotes from those cases, especially when they might be adverse to unsupportice of the DoJ’s arguments)when they were made public, as were their briefs in a lot of the other cases. This is so much old hat, I’m hardly surprised by it.

    Doesn’t make it right.

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