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: classified, doj, foia, interpretations, legal memos, office of legal counsel, privacy
Companies: eff


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  1. identicon
    Hon. Robert F. Frazier, Esq., 7 Jan 2014 @ 3:58pm

    01-07-14 Reply to "That One Guy" (Re: 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.

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