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

Legal Issues

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

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with the DOJ, I believe that this opinion is inconsistent with the public’s understanding of the law, and should be withdrawn.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.

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