DOJ Tells Ron Wyden, ACLU, Court That It's Under No Legal Obligation To Reveal Contents Of Secret Legal Memo

from the 'as-we've-explained-to-the-court-in-secret,-the-secret-should-stay-secre dept

Wed, May 11th 2016 2:02pm — Tim Cushing

There's another secret legal memo that's been floating around the nation's intelligence offices for more than a decade that the DOJ won't let the American public see. The memo's contents have been hinted at repeatedly by Senator Ron Wyden, who dropped the heaviest hint of all roughly a year ago, during the runup to the passage of the cybersecurity bill. This lends some credence to the assumption that the secret Office of Legal Counsel (OLC) memo is somehow related to government demands for information and data from tech companies.

[....] "I remain very concerned that a secret Justice Department opinion that is of clear relevance to this debate continues to be withheld from the public," Wyden said in his written dissent against CISA, which cleared the Senate Intelligence Committee 14-1 in March. "This opinion, which interprets common commercial service agreements, is inconsistent with the public's understanding of the law, and I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch."

This followed another hint dropped by Wyden earlier, during the confirmation hearings for Caroline Krass for the position of CIA general counsel. When asked about this secret memo, Krass made it clear it would not be appropriate for her agency to rely on the John Yoo-authored legal rationalizations. Nor would it be appropriate for the NSA to continue using it for legal guidance.

I have been thinking about your question because I understand your serious concerns about this opinion, and one approach that seems possible to me is that you could ask for an assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion. I can give you my assurance that if I were confirmed I would not rely on the opinion at the CIA.

This led to Wyden writing a pointed letter to Attorney General Loretta Lynch, on behalf of the ACLU, which is engaged in a FOIA lawsuit over the DOJ's refusal to release this document.

As I have noted in previous correspondence with the DOJ, I believe that this opinion is inconsistent with the public's understanding of the law, and should be withdrawn. I also believe that this opinion should be declassified and released to the public, so that anyone who is a party to one of these agreements can consider whether their agreement should be revised or modified. For these reasons, I encourage you to direct DOJ officials to comply with the pending FOIA request.

The DOJ has now responded to the lawsuit, declaring that Wyden is mistaken in his depiction of the OLC memo and defending its "right" to keep its legal theories to itself. Mainly, it does this by claiming that, while it may rely on OLC memos for legal guidance, they are not "working law" -- something that definitely should be made public.

However, the DOJ -- in all the words it expends defending the ongoing secrecy -- never addresses the accuracy of Wyden's severely limited depiction of the memo's contents.

Not only is the DOJ in the right, lawyers claimed in a new filing, but it is Wyden whose argument is misguided.

“The senator’s claim of inaccuracy is based not on any inaccurate or incomplete facts, but rather on a fundamental misunderstanding of the ‘working law’ doctrine,” claimed the U.S. attorney for the southern district of New York.

On Friday, Wyden struck back, claiming that the Obama administration was avoiding his central claim.

“The Justice Department isn’t denying that this opinion is inconsistent with the public’s understanding of the law — they are just arguing that they should be allowed to keep it secret,” he said in a statement.

According to the DOJ, relying entirely on a legal memo for policies and procedures doesn't make it "working law." An agency can follow a legal memo to the letter but as long as it does not officially adopt the stances espoused, it can play keepaway with the legal memo forever. To support this assertion, it uses Caroline Krass' testimony -- the same answer that appears to indicate Yoo's legal arguments are on very shaky ground.

The statements made in 2013 by Caroline Krass, then-Principal Deputy Assistant Attorney General for OLC, testifying in her personal capacity as nominee at her confirmation hearing to be the CIA General Counsel, see Pls.’ Opp. at 7, 10 n. 6, similarly show that the OLC memorandum does not establish agency policy. Ms. Krass testified that, if confirmed, she would not rely on the opinion, she described the circumstances under which an OLC opinion might be withdrawn, and she explained that if the Senator had concerns, one possible approach to address those concerns would be to ask the relevant agencies not to rely on the OLC memorandum.

Far from showing that the OLC memorandum fixed the policy of any agency, these statements too only highlight its advisory nature.

Furthermore, the DOJ claims its stance is fully justified… because of all the things it submitted to the court in secret.

Finally, the declarations submitted by the Government, including the classified declaration submitted for the Court’s review ex parte and in camera, easily satisfy the Government’s burden to logically and plausibly explain why the OLC memorandum is exempt from disclosure in full under FOIA Exemptions 1, 3 and 5.

So far, the memo's been in effect -- and completely secret -- for thirteen years. If the court is sympathetic to the DOJ's arguments, it could go on indefinitely. But whatever it is, it's been made apparent over the past several years that it runs contrary to the public's perception of the government and its relationship to tech companies and the data they collect and store.

DOJ-v-ACLU (PDF)DOJ-v-ACLU (Text)

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Filed Under: doj, foia, john yoo, legal memo, ron wyden
Companies: aclu

29 Comments

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Anonymous Coward, 11 May 2016 @ 2:10pm

Of the people, By the people, for the people, LOL. Don't these idiots know that the darkness can not conquer the light?
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Anonymous Coward, 11 May 2016 @ 2:50pm

These folks have already successfully obliterated the publics trust in their institutions and leadership.

My only question now is how many more unnecessary secret interpretations of secret laws, instances of getting caught in lies to the public/judges/congress, blatantly obvious unconstitutional acts, and technically legal - but actually criminal - schemes are these enemies-of-our-state going to have perform before they lose what little legitimacy they have left?
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suomynonA, 11 May 2016 @ 2:56pm

Re: Don't these idiots know that the darkness can not conquer the light?
NONSENSE! Darkness easily defeats light -- it's easy. Haven't you heard about the dark bulb? Great for quickly setting up a old-style photo developer lab.

http://www.jroller.com/darkcycle/entry/the_dark_sucker_theory

Also, look how many geniuses there are vs how many idiots. If the idiots don't win directly by soul-sucking all of the caring from geniuses, they win simply by weight of attrition.
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Anonymous Coward, 11 May 2016 @ 3:05pm

Surely the people who should determine whether the interpretation of the law is correct, (that is what they intended), are the people who wrote it, and not lawyers working for the executive.
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SpaceLifeForm, 11 May 2016 @ 3:06pm

The Department of Injustice and No Such Agency
Have convinced each each other that
whatever the other side wants to believe
is totally legal. Why? Because they both
believe they have control of a critical pool
of easily manipulated judges in key courts.
See FISC and CAFC and of course SCOTUS.

Except Scalia threw the monkey into the wrench.
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Anonymous Coward, 11 May 2016 @ 3:10pm

Re:
I'd say something here, but I honestly don't want to take a chance that TechDirt would have to pay more legal fees to deal with more subpoena sabre-rattling over obvious hyperbole. Hmm... I guess the sabre-rattling works: even if I didn't care about the government harassing me, I'd still have to think about everyone else caught in the middle. Whaddya call that? Censorship by empathy?
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Anonymous Coward, 11 May 2016 @ 3:22pm

Re: Re:
You call it chilling effects.
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beltorak (profile), 11 May 2016 @ 3:22pm

At this point even if it does get revealed, the DOJ can just claim that it has been retired and thereby prevent anyone from having grounds to sue. "No harm no foul" right? Wasn't one of the EFF suits dissmissed under this argument after the relevent portion of the PATRIOT act was "retired"? "Good job, you finally proved standing. But that section is going to sunset in a few months, so it's all good."

LOL or I weep for our future, hard to know which reaction is appropriate.
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Dave Cortright (profile), 11 May 2016 @ 3:48pm

Wyden should stop talking around the issue and just release it
Article 1, Section 6 of the Constitution protects him from repercussions if he introduces classified material into the public record. So just do it already.
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Anonymous Coward, 11 May 2016 @ 4:31pm

Re:
Neither will conquer forever. It's a battle that will never end.

In this battle there are those that are black knights and those that are white knights. But mostly, there are those who's singular purpose seems to be to process food into poo.

The day is rarely won by "most people". Way more often it's won by a passionate/vocal minority who shine light on the corruption of the treasonous few - thus making their wrongdoings undeniable to the rest.

We have right, justice, and the moral high ground on our side. History has shown, if applied properly, they can ebb the flow of our society's longtime affliction; the insidious, democracy-killing, globalist, anti-free-market, anti-public good, plutocratic greed.

Stay strong brother, keep fighting the good fight to whatever degree you're able.
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Huh, 11 May 2016 @ 4:32pm

Re: Wyden should stop talking around the issue and just release it
I don't think that's right. Revealing top secret information is technically treason, sooo...

They shall in all Cases, except Treason, Felony and Breach of the Peace,
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Anonymous Coward, 11 May 2016 @ 5:15pm

Re:
according to THEM, they can follow these non-laws LIKE they ARE laws, with a get-out-tof-jail card of saying they aren't *really* laws, so there...
um, this grade-school dissembling passes for serious and rational governance ?
no, we are into kafkaesque territory...
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Franz Kafka, 11 May 2016 @ 5:41pm

Re: Re:
I'm really sick of you people dragging my name into this crap. There was art and subtlety underneath the simple, infuriating surface of my work. This? Plain ol' sack-of-duh, slapstick, half-witted, Americanesque nonsense.
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Anonymous Coward, 11 May 2016 @ 6:01pm

Re: Re: Re:
True. I'm just kinda weirded out by the fact that I'd always thought about the consequences for myself, but hadn't really considered the problems caused for all of the other links in the chain of government harassment that would have to be visited to get to me. Then again, I am a narcissist, so that probably explains it.
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Anonymous Coward, 11 May 2016 @ 6:06pm

Under this theory, you can legally commit any act that would otherwise be a crime, as long as you have a secret interpretation asserting that it is legal when you do it for good cause. That line of thought cannot possibly end badly or be used for unjust ends.
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Anonymous Coward, 11 May 2016 @ 6:09pm

Re: Wyden should stop talking around the issue and just release it
I can see why Wyden wouldn't (and to me, shouldn't) do that for anything that isn't an earth-shattering game-changer: the 'no repercussions' thing would prevent obvious payback, but he'd still have his life trashed one way or another without too long a delay. I'd rather have him eating away bit by bit until he finds that 'big thing' that makes it worth it... like Udall should have done with the torture report when he knew he wasn't gonna be re-elected.
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Anonymous Coward, 11 May 2016 @ 6:52pm

Its obvious what it is
They are pretending that any 3rd party company is required to turn over access to all data on users. This lets them tap into the backbones of the internet itself and pretend its all legal and approved.
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Crusty the Ex-clown, 11 May 2016 @ 7:35pm

But they've been telling us for years....
"If you haven't done anything wrong, you have nothing to worry about."

If DOJ really believes this is constitutional they should allow it to be reviewed by, say, the US Supreme Court. Sure sounds like they know it would get invalidated by an impartial panel.

And foreign intelligence services likely already know or can guess what's in that opinion. This effort is being made to prevent American citizens from realizing the true extent of government surveillance.
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John Fenderson (profile), 11 May 2016 @ 8:16pm

Re: Wyden should stop talking around the issue and just release it
The instant he does this, his political career as it exists now is over. Even if he can't be prosecuted for that, he would be kicked off all important committees and his influence and power will evaporate.

Which means that he wouldn't be able to even do as much as he can now.

If he were to do such a thing, it should be for something that is so important that it's worth losing a valuable asset.
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John Fenderson (profile), 11 May 2016 @ 8:18pm

Re: Re: Wyden should stop talking around the issue and just release it
Revealing top secret information is not treason, although revealing it in particular ways can be (for example, if you are doing so to aid an enemy of the US).
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Whatever, 11 May 2016 @ 9:37pm

Finally, good news for a change
You tell that scumbag, DOJ! Fuck Wyden, and fuck Masnick's obvious Kool-Aid campaign for Wyden!
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Anonymous Coward, 11 May 2016 @ 10:28pm

Re: Re: Wyden should stop talking around the issue and just release it
"The instant he does this, his political career as it exists now is over. Even if he can't be prosecuted for that, he would be kicked off all important committees and his influence and power will evaporate."

That's the whole point. He values what these things mean to him personally more so than he does any public benefit.

"Which means that he wouldn't be able to even do as much as he can now."

He's not really "doing" anything besides rubbing into the nose of the public that they're being shafted.
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Peter (profile), 11 May 2016 @ 11:11pm

Fair enough
DOJ is free to use any internal documents it wants, and keep them confidential if they choose.

Those internal documents should not have any legal relevance whatsoever outside the DOJ, though, published or not.

If a DOJ employee is caught breaking the law, the benchmark for prosecution is the law, not some internal memo, secret or not.

The courts should make clear they will not accept a 'but my boss told me it was ok' unless evidence is produced in public.
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Anonymous Coward, 12 May 2016 @ 1:43am

Re: Re: Re: Wyden should stop talking around the issue and just release it
Remember, there's classified and there's classified - guess which one this will be...
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Anonymous Coward, 12 May 2016 @ 4:42am

Re: Finally, good news for a change
Is it Anonymous64's turn to suck you off this time?
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Anonymous Coward, 12 May 2016 @ 6:26am

Re: Wyden should stop talking around the issue and just release it
That would require having people in charge actually believing in constitutional protections and rights. I feel safe in saying they don't, and instead go after anyone they feel that slights them in the smallest way.
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John Fenderson (profile), 12 May 2016 @ 7:33am

Re: Re: Re: Wyden should stop talking around the issue and just release it
I think that he's doing something incredibly important: he's signaling specific areas that we, the public, should be paying extra attention to. Without him, we'd be firing into a solid black abyss rather than being able to aim at the admittedly vagues silhouettes he's providing.
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MikeF1974 (profile), 12 May 2016 @ 8:46am

So, the DOJ found an exploit (legal loophole) and don't want to reveal it for fear that it may be patched (fixed by legislation)? Jesus Fucking Christ what bullshit.
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DOJ, 12 May 2016 @ 10:13am

Yeah, isn't it great?

I mean absolutely not, we'd never do something like that..
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