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.

“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.

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.)

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.

Filed Under: , , , , , ,
Companies: eff

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Court Decision Exempts Secret Memo From FOIA, Sets Stage For Future Secret Laws To Go Unchallenged”

Subscribe: RSS Leave a comment
That One Guy (profile) says:

Simple rule of thumb:

If it states or determines what is or is not illegal, and prohibited, or legal, and allowed, that makes it a law.

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.

Hon. Robert F. Frazier, Esq. says:

Re: 01-07-14 Reply to "That One Guy" (Simple rule of thumb)

Just a technical point regarding what makes a “law”: in addition to the (1) directive language (i.e. mandating what one must or must not do to obey the dictate of the purported “law”, there is also required to be (2) sanctionary language (i.e. the penalty[ies] for failing to do or not do the actions required to obey the purported “law”. Without the 2nd. part, the so-called “law” lacks “teeth” & cannot properly be termed a law or statute enacted under our form of governance, publically by our elected agents of the House & Senate or otherwise “secretly” by some other agency &/or instru-nentality. So, since what you are arguing about does not appear to impose any form of penalty if it is not used &/or enforced by the governmental agency to whom it is directed, or by the private tele- communications entities which seem to be its target, this pronouncement, absent the ability to levy a punishment to coerce its own enforcement, does NOT come within the definition of what constitutes a law or statute. (Further proof of why it’s still a good idea to go to law school & learn the law if one is going to try to make one’s way through the most complicated legal system “maze” yet devized by mankind: the USA system of jurisprudence!)

Offered Respectfully to help Clarify What IS a “law” & What is NOT a “law”,
… /s/ Bob Frazier.
Hon. Robert F. Frazier, Esq.

That One Guy (profile) says:

Re: Re:

By this point, I think it’s pretty much down to blackmail or corruption.

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.

Anonymous Coward says:

Re: Re: Re:

If you believe in any way in the judge, the document is not a law on its own. It has to be your base assumption that the judge knows what he is talking about in that sense (it should be pretty easy to determine that exact detail!).
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.

Eric Welch (profile) says:


I worked at the Freedom of Information Library at the J-School at the University of MIssouri for Paul Stevens, its founder. He showed me the clip files for each administration, starting with the President at the time of the FOI Library’s founding. Eisenhower’s violations of freedom of the press was in one folder. Kennedy’s was a few folders. Nixon was bigger?all the way to multiple shelves for Ronald Reagan.

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.

Griffdog (profile) says:

This can't be a good thing

Imagine the ugly offspring when you combine this ruling with the recent Texas ruling that the state can request a search warrant after the search is over.

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]

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...