DOJ Doesn’t Care What the Text of the Law or the 2nd Circuit Says, Dragnet Edition

Since USA F-ReDux passed JustSecurity has published two posts about how the lapse of Section 215 might create problems for the dragnet. Megan Graham argued that technically USA F-ReDux would have amended Section 215 as it existed in 2001, meaning the government couldn’t obtain any records but those that were specifically authorized before the PATRIOT Act passed. And former SSCI staffer Michael Davidson argued that a technical fix would address any uncertainty on this point.

DOJ, however, doesn’t much give a shit about what USA F-ReDux actually amends. In its memorandum of law accompanying a request to restart the dragnet submitted the night USA F-ReDux passed, DOJ asserted that of course Section 215 as it existed on May 31 remains in place.

Its brief lapse notwithstanding, the USA FREEDOM Act also expressly extends the sunset of Section 215 of the USA PATRIOT Act, as amended, until December 15, 2019, id.§ 705(a), and provides that, until the effective date of the amendments made by Sections 101through103, it does not alter or eliminate the Government’s authority to obtain an order under Section 1861 as in effect prior to the effective date of Sections 101through103 of the USA FREEDOM Act. Id.§ 109(b). Because the USA FREEDOM Act extends the sunset for Section 215 and delays the ban on bulk production under Section 1861until180 days from its enactment, the Government respectfully submits that it may seek and this Court may issue an order for the bulk production of tangible things under Section 1861 as amended by Section 215 of the USA PATRIOT Act as it did in docket number BR 15-24 and prior related dockets.

It cites comments Pat Leahy and Chuck Grassley made on May 22 (without, curiously, quoting either Rand Paul or legislative record from after Mitch McConnell caused the dragnet to lapse) showing that the intent of the bill was to extend the current dragnet.

While I think most members of Congress would prefer DOJ’s argument to hold sway, I would expect a more robust argument from DOJ on this point.

Likewise their dismissal of the Second Circuit decision in ACLU v. Clapper (which they say they’re still considering appealing). While it notes the Second Circuit did not immediately issue an injunction, DOJ’s base argument is weaker: it likes FISC’s ruling better and so it thinks FISC’s District Court judges should consider but ultimately ignore what the Second Circuit said.

The Government believes that this Court’s analysis of Section 215 reflects the better interpretation of the statute, see, e.g., In Re Application of the FBI for an Order Requiring the Production of Tangible Things, docket no. BR 13-109, Amended Mem. Op., 2013 WL 5741573 (FISA Ct. Aug. 29, 2013) (Eagan, J.) and In Re Application of the FBI for an Order Requiring the Production of Tangible Things, docket no. BR 13-158, Mem. (FISA Ct. Oct. 11, 2013) (McLaughlin, J.), disagrees with the Second Circuit panel’s opinion, and submits that the request for renewal of the bulk production authority is authorized under the statute as noted above.

[snip]

The Government submits that this Court’s analysis continues to reflect the better reading of Section 1861.

This is where, incidentally, the flaccid report language attached to USA F-ReDux is so problematic. In a filing affirming the importance of legislative language, had the HJC report said something more than “Congress’ decision to leave in place the ‘‘relevance’’ standard for Section 501 orders should not be construed as Congress’ intent to ratify the FISA Court’s interpretation of that term,” DOJ might have to take notice of the language. But as it is, without affirmatively rejecting FISC’s opinion, the government will pretend it doesn’t matter.

I’m no more surprised with DOJ’s argument about the Second Circuit decision than I am its insistence that lapsing a bill doesn’t have legal ramifications.

But I would expect both arguments to make some effort to appear a bit less insolent. I guess DOJ is beyond that now.

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.

13 replies
  1. phred says:

    Cue Treasure of the Sierra Madre…
    .
    In all seriousness though, it has been evident for quite some time that unless Congress or the courts do something drastic, the executive branch will continue to do whatever the fuck it wants to and they will cheerfully lie about what they are doing to boot. Why not?
    .
    Still, it is disconcerting to see, as you note, just how brazenly insolent they have become.

  2. TomVet says:

    I don’t think it would matter whether Congress made their intent crystal clear, either by printing it in large block letters or carving it on stone tablets. If the Exec branch can redefine all the important words in their interpretation of the law to mean something other than what an ordinary reasonable person, or a dictionary, would assume they mean, then it’s not even a stretch to define NO to mean YES.
    .
    They have already asserted that they needneedneed this data and they wantwantwant it and they are going to getgetget it, by God. Never mind that they are ignoring or subverting the wishes of the other two branches AND the American people to do so.
    .
    Laws and rules mean nothing to these tyrants.

    • phred says:

      LOL, thanks so much for posting a comment that so clearly expresses how our country has been run amok by the leadership of two year olds ; )

    • wallace says:

      quote”Laws and rules mean nothing to these tyrants.”unquote

      Of course not. Legal Imperialism is only subject to the next bigger threat to it’s existence. Law means nothing other than what it exerts on subjects of it’s taxes.

      Meanwhile, once in a while it exerts it’s power in an edict of stupidity that even they know they can’t cover up forever, and given their position within the declarations of Sovereignty by which they hold this power, their position is tenuous at best, as sooner or later, they will HAVE to defend their decisions to assassinate one of our citizens.

      https://news.vice.com/article/the-fbi-discussed-an-end-game-for-a-us-citizen-killed-in-a-drone-strike

  3. bsbafflesbrains says:

    Just declare Permanent Marshall Law, pick the next Emperor and let’s be done with the pretense of rule of law. Then the revolution can start without all this awkward break up conversation.

    • wallace says:

      quote”Then the revolution can start without all this awkward break up conversation.”unquote

      Your jest mocks your stupidity. Only a fool would wish for civil war. However, given the REAL people who are on the front line of 2nd Amendment battle lines make you look like an idiot, I won’t belittle your statement further. Only give you a look at what the REAL deal is. Now..get a fucking grip.

      http://sipseystreetirregulars.blogspot.com/

  4. JohnT says:

    I guess we’ll have to see if the courts cave to them like a bunch of democrats on a war vote, but I as read this, I have hope that it plays out like that scene in A Few Good Men
    .

  5. bloopie2 says:

    We need this Bronx judge to take over the ‘dragnet’ cases. He blocked an NYC ordinance requiring pawnbrokers to provide the government with complete information on all transactions – not just some, but all. Said it’s an unconstitutional search and seizure; the vast majority of the transactions are perfectly legal, and they can’t be allowed to set up such a such that database to go fishing for stuff. Howzabout that!
    .
    http://www.newyorklawjournal.com/home/id=1202728731996/Judge-Blocks-Enforcement-of-City-Database-on-Pawnbrokers?mcode=1202617075062&curindex=2

    • P J Evans says:

      I get a newsletter from a crappy congressman from west Texas that I keep an eye on. He was running a survey on whether CFPB should be allowed to have credit-card-holder information. I felt like phoning his office in DC to tall them that that information is already in the databases of the un-intelligence agencies, and if the congresscritter would use his head for more than holding his ears apart, and would stop buying the lies he’s fed, he’d know that that horse left the barn years ago. (He’d also know that no computer that connects to the outside world is completely secure. I bet he has a lot of problems with viruses.)

  6. bloopie2 says:

    We need this Bronx judge to take over the ‘dragnet’ cases. He’s ruled that an NYC ordinance requiring pawnbrokers to populate a city database of all pawnbroker transactions is an unconstitutional search and seizure of private information; they city can’t maintain such a database, in which 99.99% of transactions are perfectly legal, in order to make their job easier to find the 0.01% of transactions that are crime-related. Booyah!
    .
    http://www.newyorklawjournal.com/home/id=1202728731996/Judge-Blocks-Enforcement-of-City-Database-on-Pawnbrokers?mcode=1202617075062&curindex=2&slreturn=20150509152432

  7. Giles Byles says:

    Armchair English professor posits thusly:

    Within the list of possessive pronouns there is not an apostrophe to be found.

    To wit:

    my, mine
    our, ours
    your, yours
    his, her, hers, its
    their, theirs

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