Okay, not quite. But still.
From the WSJ/AP: “New York Times Sues Department of Defense For Eavesdropping Records”:
The New York Times sued the Department of Defense on Monday, saying the government has refused to turn over records related to its domestic warrantless surveillance program.
In a lawsuit in U.S. District Court in Manhattan, the Times asked the court to order the government to comply with a Freedom of Information Act request requiring it to release documents or provide a lawful reason why it cannot.
The spying program was revealed by the Times in a story in December.
Maj. Susan Idziak, a Department of Defense spokeswoman, said the department will work closely with the Department of Justice on litigation regarding the matter.
The Times said a Dec. 16 letter to the Department of Defense requested all internal memos, e-mails and legal memoranda and opinions since Sept. 11, 2001, related to the National Security Agency spying program. The department is the parent agency of the NSA.
The newspaper said it asked for meeting logs, calendar items and notes related to discussions of the program, including meetings held by Vice President Dick Cheney and his staff with members of Congress and telecommunications executives. It also requested all complaints of abuse or possible violations in the operations of the program or the legal rationale behind it.
And it sought the names and descriptions of people or groups identified through the use of the program and a description of relevant episodes used to identify the targets of the intercepts.
The lawsuit said the Department of Defense acknowledged receipt of the request on Dec. 30, 2005, but the response, required in 20 business days, never came.
In its lawsuit, the newspaper asked the court to order the materials released.
President Bush has defended the program to monitor electronic communication between the U.S. and international sites involving suspected al Qaeda operatives as vital to antiterrorism efforts.
I don’t have much to say on this except to say that the NYT makes up for its lack of partisan fairness by an excess of gall, but AJ Strata suggests there may be more to the Times’ feint than mere publicity they hope will help paint them as part of whistleblowing operation, rather than as part of an operation that illegally leaked classified national security secrets.
Related: The ACLU used the FOIA to make similar requests back in December, which I discussed here:
From my perspective, this is simply a petition on behalf of the original leakers to expand the scope of the leak of a necessarily highly classified program; and it is largely symbolic, I would imagine, as the information almost certainly falls under one of the 9 exemptions the NSA allows for FOIA requests.
What authority a US District Court has to compel the release of classified information I’m not certain. Perhaps someone with a legal background can answer that in the comments.
My suspicion is, the NYT petition will be refused on national security grounds, but as I say, I don’t know enough about how these things work to speak to the validity of the suit.
(h/t Terry Hastings)
A court can determine if something is properly classified. If it is so it can’t order it released under FOIA. A lot of the program could be unclassified though. Such as the oversight, numbers involved, or legal memoranda discussing it.
Why doesn’t the NYT declare itself a foreign country at war with the United States. Contract with the ACLU (another hostile power) to function as it’s Justice and State Dept. Then at least they would be honest in their ongoing war with the United States.
Also, I don’t know what you mean by ‘leak,’ but its not that much of a leak if its information which the law says belongs to the public, ie: if it is FOIAble.
Does the Times have to declare itself a foreign country in order to be a foreign country?
Wouldn’t that be like John Kerry up-and-spouting, “I hereby declare myself to be a Doo-shnozzle.”
Why doesn’t the left just admit it finds the whole separation of powers thing wrong and wants a government by the judiciary?
You think the freedom of information act raises separation of powers problems?
I want Famous Amos’s recipe for those phat cookies! Those cookies are flat out delicious!! If I had that recipe I could roll like Amos as a Badass Cookie Magnate. Can I sue under the FOI?
Maj. Idziak is hot! She’s 45 now but works out like a fiend!
If a federal agenc has has it, you can file for a FOIA. But you might not end up with the stuff, because 5 USC 552(b)(4) prevents the release of things that are “trade secrets and commercial or financial information obtained from a person and privileged or confidential;”
If the DoD fumes and rants that publishing the records in the newspaper is offensive to them, would the NYT refrain on grounds of sensitivity?
Damn you FOIA!!!!
Looks like I’m back to marketing Al’s Sigmoid Oatmeal Bars.
“Eat them at home.”
Only if the DoD and everyone within it converts to Islam and burns the Gray Lady in effigy. In the parlance of the times, that’s how they roll.
I would like to see the DOD threaten to burn down the NYTimes
I could live with that. They’d have to hand Halliburton a no-bid contract to replace it though, just to make it sufficiently evil.
The NYT doesn’t deserve the right to sue anyone over violating freedom of information when they don’t actively protect and promote the right.
THat’s an interesting way to view standing under statutorily granted causes of action. Very thought-provoking.
My use of classified information is at the user end, but the judge would need a security clearance and operational knowledge of the matter in order to determine something was properly classified, else the judge would be breaking the law. This strikes me as a cumbersome and time consuming…unless there are allowances in the Federal statutes concerning information security. Since you bring it up, how about a citation from you on how a ”…court can determine if something is properly classified”?
Further, from the Department of Justice FOIA Reference Guide:
Emphasis is mine. Note that the second emphasized item jives with your comment here. So I have your independent confirmation. Interesting, that.
So, up front, the NYT FOIA request was doomed, at least in regards to the classified documents, and I seriously doubt that a judge can change this, although I eagerly await your citation to prove me wrong.
I don’t know why DoD simply didn’t respond accordingly, and as required by law. I hope they have a strategy in mind.
BTW, actus, this is how I found the DOJ web site. You might try it sometime, instead of shooting from the hip.
You think giving the judiciary the ability to declassify information doesn’t?
The FOIA Act exempts things that are “in fact properly classified” at 5 USC 552(b)(1)(B). Its going to be a court that decides that. It will be a matter of fact for the factfinder. For an example of a court mentioning that, see CIA v. Sims:
471 U.S. 159, at 183.
where “the hip” is “the statute”.
All that they can review is if it was properly classified pursuant to an executive order. That’s pretty minimal.
There’s a few Executive Orders that provide for declassification of information by committee. Given that it’s illegal for information to be classified for the sole purpose of hiding controversy, I’m thinking that there’s already oversight.
It’s unlikely in the extreme that any judge would have the level of access required to decide whether this sort of information is properly classified. Also, it’s possible to discuss whether something ought to be classified without specifying what that thing is, exactly.
That said, I’m ok with having these decisions in the hands of agency heads. We don’t have a system of checks and balances for classification/declassification procedures.
This is too rich…Actuse trying to pretend like he has a brain.
NYT commits treason and then pretends its business as usual by filing a FOIA request…just when I thought the world could not get more absurd!
There’s already a mechanism in place for said review, actus.
Sorry, forgot the link.
And the courts, under FOIA, do a de novo review. That doesn’t change because there’s an executive order at your link that sets up an executive branch procedure for this review for when authorized holders complain.
The facts have an annoying tendency to give some people a hard time.
Like I said.
Per FOIA:
Interesting; I don’t see any provision for oversight by the judiciary into whether information is in fact properly classified. Cite, please? The de novo review provision appears to apply to data that is not classified.
So actus, you see no irony in a post facto filing of a FOIA request after leaking classified information. Why didn’t they just file the FOIA req first? This smells of really poor, after the fact fanny covering.
When someone sues, who do you think decides whether the statute has been followed?
I gave it to you above. From CIA v. Sims, a case discussing another exemption (And where hte court performs a review of correctness of the agency claim for the exemption. The short answer:
The statute also has a section on judicial review. 5 USC 552(A)(4)(B):
Subsection (b) is where the exemptions are listed, including (b)(1), for classfied stuff.
Probably because the FOIA act requires you to reasonably describe the records you are seeking. 5 USC 552(a)(3)(A)(i). So you can’t request stuff that you don’t know exists.
actus, there may be a court review on the procedures to classify the data (including agency oversight), and what the Original Classifying Authority (OCA) is, but ultimately, as Slartibastfast points out, declassifying the information is a whole another matter.
To review the documents to see if they are “properly classified”, as you state, the judge must possess the clearance and need to know. This is Federal law, AFAIK. Then the judge must determine if the release of the data in the documents will harm national security. This is a duplication of effort of the agency.
My request for a citation was for authorization of a judge to review classified information without a need to know and/or clearance, under judicial procedures; I should have been more specific. If there is to be a decent review here, the judge can’t do it alone. All of these documents must be released to the court….which walks up against the OCA (most likely, an Executive Order).
Which came first, the chicken or the egg? The OCA or the court? Hmmmmmm!
Which was my original point. “From the hip” in your case means ignoring those oh-so-inconvenient separation of powers. Again.
Maybe the NYT is trying a backdoor approach to challenge separation of powers, only using the Judicial Branch instead of trying to inflame Congress into action.
TW: The evidence suggests it.
That’s why classified stuff is exempt, actus. Congratulations, you’ve just refuted yourself. There’s no process in the FOIA that you’ve referred to that has authority to address the issue of proper classification.
I think you’ve misunderstood:
So, if the records have been improperly withheld, then the de novo review process can be engaged. If not, not. Whether that’s the intent of the law is a different conversation, but that’s the way the law is worded.
Now, if actus is correct, local courts can and have been able to access classified information. Without having a clearance!
I’m guessing probably not, though.
And of course declassified records can be FOIA’ed, so that the courts can review redacted copies of records. But I’m guessing this is not what actus meant. What he actually did mean, though…well, we’ll have to see.
It appears that according to this the judge can order the agency to produce the records and then can look at them in chambers to determine if they have been properly designated classified. The Judge would not have the power to decide if the documents should be classified or not. In other words if an agency took information unrelated to a particular executive order and designated it classified under that order the judge could order it released because it was not covered by the order, he cannot overrule an executive order and release info as long as the info was properly placed under its jurisdiction.
I don’t know how all this would go down if the judge did not have clearance to see the records, I suppose there must be a mechanism for that but I don’t know what it could be.
I quoted you federal law. It says the court examines the records to determine if they are under an exemption—ie, that they are properly classified.
You’re making no sense. I gave you what the law is.
FOIA is quite well established in the regime of separation of powers and checks and balances.
The de novo review is to judge the propriety of witholding the records. That’s what the next sentence says: the court examines the records to determine whether they are to be withheld under any of the exemptions. Ie, whether the records fit under any exemption. To fit under exemption (b)(1), you have to be properly classified.
I would imagine that either the law is clearance enough, or there are some judges with clearance that do this.
Slartibartfast,
Under your interpretation how would someone challenge whether info was properly designated classified? I think (correct me if I’m wrong) what you are saying is that as long as the agency says that the info is properly classified the process goes no further? I would think there should be some mechanism for making sure that agencies don’t falsly place information into classified designations.
OBTW: I agree with Jeff, if the existance of the program itself is classified (which is what has been implied by the White House and seemingly confirmed by the justice dept probe into the leak)it stands to reason that all information related or referring to it would be as well.
I vote for the DoD rioting in the streets and burning down the NYT. Nobody’d miss ‘em, and I’m sure it would have the beneficial side effect of clearing some valuable real estate that could be put to better use.
Now some might raise the ugly specter of posse comitatus in this instance, but if you think about it, it’s not really all that much different from what the left was demanding the DoD do after Katrina.
You quoted me federal law. It says the court examines the records that were improperly withheld. If they’re classified, they’re by definition properly withheld. If you’re telling me I’m wrong, you’re going to have to speak to precedent.
I don’t know, but I’d advance the idea that classification challenges aren’t the purpose of the FOIA. Given that the FOIA has exemptions built into it to cover classified data, classification challenges would of necessity (note: IANAL) be done through other channels.
Hey! Who let the freakin’ lawyers in?
That’s a sure way to avoid any logical conclusion.
They’re ‘by definition’ properly held if they’re ‘properly classified.’ That’s what the court determines.
I would like to see the DOD threaten to burn down the NYTimes
Threats? The DOD reserves threats for clown shops like Al Jazeera. We need action! Perhaps a couple of Predators into the upper stories of the NYT building to test its structural integrity would be just recompense for their cold, calculating fifth column activities on behalf of our sworn enemies. More bang for the buck than taking our Al Jazeera, too.
But I like your style, kid. You were on the right track, anywise.
In the interests of discussion of course. Because its so much better than cheap ad hominem stunts.
I’ll buy that, provided you can supply a single precedent where the court reviewed classification. There should be quite a lot of them to choose from.
If a federal agenc has has it, you can file for a FOIA. But you might not end up with the stuff, because 5 USC 552(b)(4) prevents the release of things that are “trade secrets and commercial or financial information obtained from a person and privileged or confidential;â€Â
So Actus,
What you reeaally want is the DOD to lift up their skirt and let the party begin?
What ever happened to National Security?
And also the NYT has lost their minds….
I tend to agree with you bart, I dont think that any old federal judge can access materials that, whether properly or improperly, have been withheld as being classified. The section I quoted above sure seems to allow for it though.
Actus,
According to what how we are interpreting foia, would you agree that someone could sue under the FOIA for the codes that the President carries that control our nuclear weapons. They would of course be withheld as classified but then the petitioner could take it to district court and a judge would have to be given the information for him to determine whether the info has been properly withheld. I have a hard time believing that would be the case, what say you?
Just to keep things honest: I’d been maintaining that the statute says that the courts only review records that have been improperly withheld. I see now that I’ve misread, and what it actually says is the courts can order agencies to provide said improperly withheld records. So I was wrong, there.
What’s still not clear is how a court can examine records that it’s uncleared to examine. Given that doing so would be a violation of the law, I’m thinking this is not how things work.
What are you talking about? The exemption I cited there was about commercial information.
In the case I cited they reviewed a different exemption. No reason why that shouldn’t apply to exemption 1 as well, as the language is the same.
Quickly searching, King v. U.S. Dept. of Justice, 586 F.Supp. 286, assessed the propriety of classifying documents. I would imagine that most section 1 exemption claims would be challenged.
And this is where we diverge. Me, straight, you, at a tangent. You are quoting FOIA law. I am referring to the laws regarding national security. That’s why I noted the separation of powers. Yet again.
My comment on the chicken and the egg? Which has a higher priority under the separation of powers (OCA), or the court (FOIA)? I know your answer.
First there is a question of whether the office of the president is an agency. Only Agencies are FOIAble. I don’t think you can FOIA his office.
A judge has discretion for that. But it would probably be abuse of discretion to not rely on the numerous credible affidavits that would say that in camera review was unnecessary and the stuff is properly classified. The actual codes themselves say nothing about whether they are properly classified, so nothing is gained by in camera review.
I’m not following what the separation issue is. Laws are written by Congress.
What do you mean by ‘priority’? They’re different systems, for different people, for different purposes.
Links are always good, Actus. As a courtesy, I mean. Sims v CIA was an example of how the courts were able to decide whether the information being classified was in fact properly classifiable. It’s not clear whether in that case, the court actually reviewed the documents in question. If this is the level of review you’ve had in mind in this thread, I can see how it might be done with minimal risk of divulging anything critical. OTOH if everything NSA is doing is convered under sources and methods rationale, all you’re going to find out is whether the classification of the kind of information is consistent with guidelines.
If that’s what it takes to reassure everyone that the NSA isn’t doing anything illegal, I might consider that doing it is a good idea.
s/convered/covered
I’m searching WestLaw. A link won’t do you any good.
King v. U.S. Dept. of Justice didn’t look at the documents, but relied on affidavits about them.
Florida Immigrant Advocacy Center v. National Sec. Agency, 380 F.Supp.2d 1332, concludes an exemption question this way:
So the judge got to look at documents.
Unredacted? What level of classification?
It wouldn’t be nearly as surprising that a judge was cleared to examine material classified Confidential as it would if he’d been granted access at say, TS-codeword level. To examine documents at that level, he’d have to be granted codeword access for every single compartment for which there was a document examined. Whereas Confidential or Secret would just involve need-to-know verification.
I have no idea what is surprising. But it is a case of a judge reviewing in camera documents that the NSA claims are exempt under (b)(1).
Another quote from the case describes the document:
So the judge got to look at Top Secret stuff. And so we have met:
Thank you, actus. I’ve learned something new today.
You would if you’d ever had a background investigation for clearance. They’re nearly proctological in their intrusiveness.
I can sue for the records on black ops in optics/directed energy weapons/Mr. Bubbles experiments, too.
Ain’t going to happen.
Oh, and actus, as always–you’re an idiot.
actus admits:
That’s quite obvious to those of us who’ve ever actually held a high level security clearance or worked with classified material.
TW: There are many readers and authors of blogs out there who have actually worked in intel agencies and find this whole NYT *treason* so disgusting that they can barely stay civil.
I think Actus would welcome proctological intrusiveness.
Anyways, it is hard to argue with anyone who refuses to understand the real implications of each situation
No “nearly” about it.
TW: Fortunately, I’m on good terms with my proctologist.
Heck, the New York City press has been pissed at Washington ever since the other 12 states voted to move the federal capital south. This is just another splinter under the fingernails, so to speak, while carrying out their vendetta.
Keep saying that.
He doesn’t have to keep saying it, actus, we’ve long been convinced of its verity.
Can’t believe I read the whole thing!
Course now I got lawyer stank all over me.
Then spake actuyse, thusly:
Spake then actuyse thusly, spake actuyse. And a cry went up from Washington-Gomorrah, yeah verily a mighty cry for the people had heard, the dependants and the downtrodden and the welfare mothers, verily, and the drive-by shooters and the senators and the interns and the Georgetowners and the National Review Onliners. The people had striveneth in vaineth to stopple their ears but had not drown out the Noise of the Law and the Noise of the Law-yer for it rang from the rooftops and vaulted domes and the oval offices.
And the cry was mightly vexed for the people had neither air nor water with which to insert a verb edgewise. And the people wept for not since the Twenty Eight Gauge had roared, had the people heard such a terrible sound.
So the lord sighed and consulted a Book, and the Book was phat, and it saidst “The Book of Reasonability” upon it’sd bindings, which were phat and bound the Book about its bindings.
Said then the lord, “actuyse, thou art mine verbosest mutha and thou has served thine art well, hast thou.
“Go hence into the land, as a law-yer, and vex them”. (For the lord was jealous and wrathful.) “Go thou unto the Right and unto the Left, unto the Jeff and unto the Straits of Hormuz and preach unto them.”
And actuyse didst as the lord had commanded him; going unto the Right and unto the Left, unto the Jeff and unto the freaking wall, preaching the word of the disconnected and discontented and disordered and the word therefore of the law.
And then the lord said. “actuyse, come hither and rest for thy contract it hath expired.” And actuyse scampered hither and cameth hometh to Washington-Gomorrah (where the Bush it burned with a terrible, consuming fire, burning the Time and the Towers, for it was Evil when it was not Complicit.)
The lord then spake again: “Seems this here Book of Reasonability has, well, like this whole chapter on hangin’ your bare white ass out in public that I like never saw before. Check this shit out, bro!
And the lord frowned. And actuyse shake, for actuyse saw that the end it was near and the Thread it was now broken.
And the lord smiled: “Man, you’re like, fired!”
Hmmm.
Can I be Judge Dredd?
“I am the Law!”
“And I’ll take a couple glazed doughnuts with that medium coffee…”
Some people have a problem with the rule of law. I guess they prefer to be po-mo whatever I say is the law is the law types.
Uh-huh. And I understand that the average US state has nearly 500,000 laws on the books, obviously most of them enacted by special interest and having to do with managing personal life and behavior and rights.
Can you confirm this, actus? Is it really a half-million?
<blockquote>
Can you confirm this, actus? Is it really a half-million?
<blockquote>
I have no idea. I do know that FOIA is pretty straightforward. And that open government is a good concept for liberal democracies thats not to be sullied by cultural relativists that want to say its ok to live in a state of permanent war.
Oh, see? You snuck that part in!
(Because we’ve been at it forever.)
Actus:
First time I’ve ever been accused of being a cultural relativist. You might want to take your nose out of the law books long enough to find out that cultural relativism is the view held largely by the left that all cultures are inherently equal, and that what is good in any given cluture is OK for them, even if it involves sacrificing small children to the sun god.
Most of the sane folks here are more of the mind set that there is such a thing as ‘evil’ and such a thing as ‘good’, and that both can be empirically defined. That’s a far cry from cultural relativism.
Yes. And i’m not about the let the perma-war types off the hook by saying thier view is inherently equal. Open government trumps that.