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 Twitter0Share on Reddit0Share on Facebook0Google+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 Okay, CNN International simulcast is great. Just did a report on the scary clown ban in France. Now that is news I can use. #BanClowns
2hreplyretweetfavorite
bmaz @LegallyErin The report I just saw on CNN looked pretty awesome. Wind and waves onto roads and all kinds of good stuff.
2hreplyretweetfavorite
bmaz @LegallyErin Bundle up baybee!
2hreplyretweetfavorite
bmaz @LegallyErin Say, my tee-bee says you have some kind weather thing going on there.
2hreplyretweetfavorite
bmaz @walterwkatz @gideonstrumpet @ScottGreenfield @LilianaSegura @roomfordebate Yes, that was a nice little touch, no? Jeebus.
3hreplyretweetfavorite
bmaz RT @LegallyErin: There's something very sexy about Anthony Hopkins as Hannibal. I always date the worst guys.
5hreplyretweetfavorite
bmaz @imraansiddiqi You seemed like such a respectable chap, and now here you are talking about Kardashians. #Shame
5hreplyretweetfavorite
bmaz @cody_k I went as a Pando journalist blowing shit out of my ass about Greenwald.
5hreplyretweetfavorite
bmaz @dcbigjohn @erinscafe In or out of the furry costume?
5hreplyretweetfavorite
bmaz RT @AntheaButler: Hands up, don't shoot. RT @deray: Superhero protest. #Ferguson http://t.co/ejnhDLq7jv
6hreplyretweetfavorite
bmaz @JoshuaADouglas @rickhasen @chrislhayes And I ask because that was why I blew off the injunction+contemplated whether were provable damages.
6hreplyretweetfavorite
bmaz @JoshuaADouglas @rickhasen @chrislhayes Question since you are in state there, is hearing even possible before the injunction would be moot?
6hreplyretweetfavorite
October 2013
S M T W T F S
« Sep   Nov »
 12345
6789101112
13141516171819
20212223242526
2728293031