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.

Reader Comments

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  1. icon
    That One Guy (profile), 6 Jan 2014 @ 3:15pm

    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.

    reply to this | link to this | view in thread ]

  2. identicon
    S. T. Stone, 6 Jan 2014 @ 3:23pm

    Hey, lookit that — now the government can prosecute people for crimes they never knew they committed.

    How much longer until the CIA has a pre-crime unit?

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 6 Jan 2014 @ 3:28pm


    worse, they can just secretly define crimes, no one knows are crimes. or just don't bother and make shit up as they go.

    at this point everything the Nazis or the stasi did, was more legal and transparent.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 6 Jan 2014 @ 3:31pm

    It's hard to play the game fairly with the people who can continuously change the rules in their favor.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 6 Jan 2014 @ 3:32pm

    Who the hell are these asshole judges that even after the whole NSA scandal, they still shamelessly support mass surveillance? Did Obama give them the job recently (like he did to the former FBI general counsel, who was trying to legalize backdoors in tech products) or what's going on there?

    reply to this | link to this | view in thread ]

  6. icon
    That One Guy (profile), 6 Jan 2014 @ 3:40pm


    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.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 6 Jan 2014 @ 3:48pm

    Secret memos dictating secret laws, is a sign of tyranny and corruption at the highest level of government.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 6 Jan 2014 @ 4:11pm


    My guess is a bunch of paranoid and cowardly old tools from the cold war era who still think of Russia as an enemy and think any "weakening" would be disastrous.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 6 Jan 2014 @ 4:26pm

    Seems like it's time make it the default that if a law is not freely and publicly available for the public to know about it, then it is to be treated as invalid and unenforceable until it is so. No reasonable person would think that you could possibly follow a law you have no way of knowing what it even is.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 6 Jan 2014 @ 5:17pm


    How long until they make freedom illegal?

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 6 Jan 2014 @ 5:17pm

    Given the current world attitude toward democracy I guess we are lucky that we know we have courts that have secret deliberations, prosecutions, opinions, suits and jailing. I could be worse. We could have all that and it be so secret that even the knowledge of existence of our Star Chambers being a criminal offense.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 6 Jan 2014 @ 7:06pm

    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.

    reply to this | link to this | view in thread ]

  13. icon
    Alana (profile), 6 Jan 2014 @ 7:35pm

    I'm sorry, you can't view this post, it's been deemed as a secret, FOIA-Immune posting that only those in our secret clique of post viewers can reply to and use as reference to those who know nothing. But we can't say what it contains so people can reply properly.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 6 Jan 2014 @ 8:02pm

    The train for the police state is pulling outta the station! All aboard whether you like it or not! Choo choo!!!

    reply to this | link to this | view in thread ]

  15. icon
    PopeRatzo (profile), 6 Jan 2014 @ 8:11pm

    Re: smh

    About thirty-four years ago.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 7 Jan 2014 @ 4:43am

    Secret Squirrel says wtf

    Secret laws created by secret government enforced by secret police adjudicated by secret courts sentenced by secret judges and terms served in secret prison.

    reply to this | link to this | view in thread ]

  17. identicon
    Eric Welch, 7 Jan 2014 @ 8:01am


    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.

    reply to this | link to this | view in thread ]

  18. identicon
    Pragmatic, 7 Jan 2014 @ 8:19am


    I daresay it's already here and they just haven't told us about it.

    reply to this | link to this | view in thread ]

  19. icon
    Griffdog (profile), 7 Jan 2014 @ 9:57am

    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]

    reply to this | link to this | view in thread ]

  20. identicon
    Hon. Robert F. Frazier, Esq., 7 Jan 2014 @ 3:34pm

    Re: Simple rule of thumb:

    reply to this | link to this | view in thread ]

  21. 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.

    reply to this | link to this | view in thread ]

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