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.

Tweet about this on Twitter46Share on Reddit0Share on Facebook31Google+10Email to someone

8 Responses to EFF: The Fourth Amendment Is Not Top Secret

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8

Emptywheel Twitterverse
emptywheel RT @johnrobb: Big win at #MarketBasket -- everyone at the store is so happy to be back. Reminder that employees + customers can stop the k…
2mreplyretweetfavorite
emptywheel @sarahjeong Maybe. Maybe not! But followers! Plus some of them make nice pancakes.
5mreplyretweetfavorite
emptywheel @sarahjeong Maybe you shouldn't have unfollowed all those nice men? Committed misandry is hard work.
11mreplyretweetfavorite
JimWhiteGNV RT @TheoloGOP: Ted Yoho is ridiculous. Go, Marihelen Wheeler! @WheelerCampaign #FL03 http://t.co/T5j47UKWCO @UniteBlueFL @FLYoungDems @FlaD
30mreplyretweetfavorite
JimWhiteGNV U.S. says no precise threat to homeland from Islamic State http://t.co/vTq5My7pm6 via @YahooNews Imagine that. But panic anyway...
46mreplyretweetfavorite
bmaz @ScottGreenfield Cheers to new owner. Siffert died as a result of a shunt with Ronnie Peterson. then Ronnie died seven years later. #F1Life
1hreplyretweetfavorite
bmaz @AdamSerwer Have fun and enjoy.
1hreplyretweetfavorite
bmaz @MikeScarcella @rickhasen And it should be. No way dispositive motions can or should be played out in time for Nov. 3. Error is not continue
1hreplyretweetfavorite
bmaz @JimWhiteGNV @darth Yup, @watertigernyc sent me the full video last week https://t.co/lJZ9N9K9zZ Samoyeds are very patient.
1hreplyretweetfavorite
JimWhiteGNV Hmmm. If same thing happens 24 hours from now, it could be a soggy kickoff for the #Gators. http://t.co/B8ZJXAQEwg
1hreplyretweetfavorite
JimWhiteGNV Hey, @bmaz, Kiki needs a kitten! MT @darth: ok put the twitter fights on hold until tuesday body http://t.co/jJd0jNEZot
1hreplyretweetfavorite
October 2013
S M T W T F S
« Sep   Nov »
 12345
6789101112
13141516171819
20212223242526
2728293031