Court Decision Exempts Secret Memo From FOIA, Sets Stage For Future Secret Laws To Go Unchallenged
from the legally-binding-'deliberations?' dept
The "most transparent administration" received another win for continued secrecy, thanks to an appeals court decision that allowed it to continue to withhold a DOJ memo that created an exploitable loophole in consumer data privacy protections.
The document at issue is a classified memo issued by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department’s inspector general at the time, Glenn A. Fine, disclosed the memo’s existence and its broad conclusion that telephone companies may voluntarily provide records to the government “without legal process or a qualifying emergency,” notwithstanding the Electronic Communications Privacy Act.The EFF has been engaged with the government over the release of this document since 2011, when a district court judge ruled the document was exempt from FOIA requests because it was part of executive branch "internal deliberations." In other words, despite the fact that the OLC memos can be considered legally binding (and exempt those following the memos' advice or instructions from legal repercussions), the memo is not considered "working law." The EFF has argued that these memos are not "deliberative," but are rather secret laws deployed in such a fashion as to avoid being exposed by FOIA requests.
The presiding judge explained his decision with this reasoning.
“Even if the O.L.C. opinion describes the legal parameters of what the F.B.I. is permitted to do, it does not state or determine the F.B.I.'s policy,” Judge Harry T. Edwards wrote in the decision on Friday. “The F.B.I. was free to decline to adopt the investigative tactics deemed legally permissible in the O.L.C. opinion.”According to the FBI, it did decline to follow the memo's parameters.
The bureau, which has abandoned exigent letters, said that it did not employ the legal theory outlined in the memo when using the letters, and that it had no plans to use it in the future.But the DOJ's arguments for keeping the memo secret calls the FBI's assertion into question.
During the litigation, the Justice Department also told the court that parts of the memo contained classified information, “highly specific in nature and known to very few individuals,” about a secret intelligence-gathering technique that the F.B.I. is using against “hostile entities.”Either the FBI is utilizing the memo's legal theories or the memo covers so much ground that the FBI is using something entirely unrelated, making the first statement truthful as far as it extends to exigent letters only.
Judge Edwards' rationale gives the government every reason to utilize the Office of Legal Counsel to provide it with the legal justification it needs to deploy questionable tactics and programs. (Previous OLC memos were used to justify warrantless wiretaps and "brutal questioning of detainees.") The ruling makes it easier for any OLC memo to be exempted from FOIA requests, providing for even more government secrecy.
David Sobel, a lawyer for the EFF, called the ruling “troubling,” describing the office’s memos as a body of “secret law” that the public has a right to know about. He said he hoped the ruling would reinvigorate efforts among some lawmakers to enact a law opening such memos to greater scrutiny outside the executive branch.Because the document remains a secret, its true significance remains a source of speculation. The New York Times says the memo is most likely the legal basis for the CIA's voluntary agreement with AT&T, which allows the agency to search its massive database of international calls (and tip local numbers to the FBI for further investigation). And it's not as if this secret memo is the only tool the government has for demanding data. The FBI may have abandoned "exigent letters" but it's still using National Security Letters to obtain data without a court order. (No mention is made of the FBI's exigent Post-It notes or over-the-shoulder database searches.)
“It’s kind of hard to imagine how a different case in the D.C. Circuit is likely to have a different outcome in light of this opinion,” he said.
The DOJ is understandably pleased with this decision as it plays to its obfuscatory tendencies. This is also a dubious win for this administration -- and those that follow. Having an in-house agency on tap that can create new laws and interpretations of existing statutes without having to risk having its legally-binding memos scrutinized by the public will be a tool too powerful for many to ignore.
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Filed Under: classified, doj, foia, interpretations, legal memos, office of legal counsel, privacy
Companies: eff
Reader Comments
The First Word
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Simple rule of thumb:
There is never a valid reason for a law to be secret.
Therefor it shouldn't matter if it was deliberated by everyone in the government, scribbled down by some lawyer on a government payroll, or anything in between, if it determines the legality of an action, or is being used as such, it should be publicly available.
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Re: Simple rule of thumb:
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01-07-14 Reply to "That One Guy" (Re: Simple rule of thumb)
Offered Respectfully to help Clarify What IS a "law" & What is NOT a "law",
... /s/ Bob Frazier.
Hon. Robert F. Frazier, Esq.
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How much longer until the CIA has a pre-crime unit?
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Re:
at this point everything the Nazis or the stasi did, was more legal and transparent.
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Either the government/NSA's got a nice 'stick'(like say, potentially incriminating communications) to use to threaten the judges to go along with whatever they tell them to, or a nice juicy retirement 'carrot' is being waved in front of their faces, where as long as they do what they're told, they'll never have to worry about holding a real job again as soon as they retire/step down from the judge's bench.
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Re: Re:
Now, there are very good arguments for wanting most of the deliberations in used publicly availabe. This may indeed be a first step towards making it possible to hide alternative ways in which a law can be used, but it is not a law and doesn't on its own hide a law. The slope is barely started towards that and it is unclear how slippery it is based on the secrecy surrounding it. Secrecy breeds conspiracies. Nothing new there.
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smh
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Re: smh
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Secret Squirrel says wtf
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Disappointment
And it continues to get worse, with Obama being the worst ever. The hypocrisy of this president is greatly disappointing. I had so much hope he would really be more transparent. (I'm not deluded enough to believe he would throw the doors open.)
I wouldn't vote for him now for dog catcher. We'd never know what happens to the dogs.
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This can't be a good thing
No longer any need to write the secret legal interpretations ahead of time. Keep everything quiet and then only write retroactively effective policies to paper over those situations where the public discovers something fishy. And then keep the details secret, just because you can! Bwaa ha ha ha haaaaah! [/cue maniacal laugh track]
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