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 Twitter51Share 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
bmaz @isamuel @copiesofcopies @OrinKerr Sure, but to be clear, Orin has an intelligent+reasoned position. May not be mine, but it is not invalid.
8mreplyretweetfavorite
emptywheel @ZaidJilani Have heard that from African friends: beatings learned from Britons. @Luvnbeer
18mreplyretweetfavorite
emptywheel @brettmaxkaufman It's their nice way of saying, "Damnit, we had hoped we could go v Klayman alone in the one favorable judgment" @aclu @eff
19mreplyretweetfavorite
emptywheel @mattapuzzo What about the covert forces on the ground? They're just killing everyone? @robertcaruso
26mreplyretweetfavorite
emptywheel @tbogg Not sure how much of this story would have come out if Goodell weren't lying his ass off so consistently. Scapegoated Rice.
48mreplyretweetfavorite
emptywheel @eljefekenney Or someone trying to protect him, yes. It's possible it's true, even.
53mreplyretweetfavorite
emptywheel @eljefekenney Dunno. Don't believe the parts abt Harbaugh, if that's your question. He CLEARLY knew more during his presser.
56mreplyretweetfavorite
emptywheel "Perhaps most visibly, Rice was the longtime spokesman for M&T Bank, one of the team's main sponsors " http://t.co/ZCOWvYAHl4
56mreplyretweetfavorite
emptywheel Glad @DVNJr's piece didn't drop till after Goodell's presser--more likely he'll go. But sort of wish it disproved the Mueller whitewash
59mreplyretweetfavorite
emptywheel @BrianF1959 Maybe. But trust me .Your depiction of what happened with public perception is utterly wrong.
1hreplyretweetfavorite
emptywheel @BrianF1959 To WHAT? To the public learning that Clapper lied? In what world?
1hreplyretweetfavorite
emptywheel @BrianF1959 About 5 people noted in real time it was a lie. Snowden exposed it as such to the public.
1hreplyretweetfavorite
October 2013
S M T W T F S
« Sep   Nov »
 12345
6789101112
13141516171819
20212223242526
2728293031