The Justice Department wants to keep secret an internal legal memo that addresses the scope of the authority under which the FBI can seek records from telecommunications companies.
DOJ lawyers have asked the U.S. Court of Appeals for the D.C. Circuit to protect the Office of Legal Counsel memo from disclosure in an ongoing public records suit. The government contends the document is protected by the deliberative process privilege.
"Mandatory disclosure of OLC's opinions would chill deliberative discussions within the Executive Branch," Daniel Tenny, a Justice Department appellate lawyer, said in a brief filed in the appeals court May 7. "OLC serves a valuable role in providing confidential legal advice to federal agencies as they develop their policies."
Federal agents sought advice from the Justice Department's Office of Legal Counsel amid an internal DOJ investigation about the FBI's use of "national security letters" to obtain information from major telephone companies. An earlier Inspector General's Office report concluded that in some instances the FBI had sidestepped procedures controlling the use of the letters.
In response to a draft of the follow-up inspector general report, the FBI said, for the first time, that "as a matter of law the FBI is not required to serve [national security letters] to obtain [certain records] in national security investigations." The OLC opinion, issued in January 2010, was not disseminated to the public.
The advocacy group Electronic Frontier Foundation sued for the document in May 2011, after the publication of a redacted Inspector General's Office report examining FBI information-gathering techniques.
The "public version of the report did clearly express the OIG's grave concerns about the FBI's and OLC's new reading of the law," the complaint said. The Inspector General's Office report said the newly argued position "creates a significant gap in FBI accountability and oversight that should be examined closely by the FBI, the department and Congress."
U.S. District Judge Richard Leon last September ruled for the government, dismissing the suit. Leon said "it's not hard to imagine how disclosure of the OLC opinion would likely interfere with the candor necessary for open discussions on the FBI's preferred course of action regarding the OIG evaluation."
Leon also determined that no portion of the OLC memo could be segregated from the rest of the document.
In the D.C. Circuit, EFF lawyers Mark Rumold and David Sobel said the DOJ legal opinion that's sought in the suit constitutes the FBI's "working law" and therefore cannot be withheld by the deliberative process privilege. The challengers called the memo a "binding statement of DOJ's binding interpretation of federal surveillance law."
The DOJ document "establishes the scope of the Executive Branch’s authority under federal law to obtain private communications records without legal process or a qualifying emergency, in spite of apparent statutory prohibitions to the contrary," the EFF lawyers said in their court papers.
The challengers also argued "the opinion’s withholding constitutes the propagation of 'secret law,' against which this circuit’s precedent has long guarded." The EFF lawyers said the Justice Department memo "provides a powerful shield of legal immunity for government officials relying in good faith on the opinion's determinations."
Responding to the claims, DOJ lawyers said the challengers "cannot seriously contend" the OLC is secret law.
"The possible effect of the OLC Opinion on government officers who have access to the opinion has no bearing on whether the OLC opinion affects the substantive rights of members of the public to whom the opinion has not been disclosed," Tenny, the DOJ lawyer, said in the government's brief.
Tenny dismissed criticism that release of the OLC memo would in any way embarrass the FBI or the Justice Department. "The appropriate officials have reasonably concluded that public disclosure of that information would threaten serious damage to national security," he said.
In a friend-of-the-court brief, several organizations, including the American Civil Liberties Union and Citizens for Responsibility and Ethics in Washington, are backing the challengers in their fight for access to the Justice Department memo. (The Washington Post also joined the brief, which was submitted by Anne Weismann, chief counsel for CREW.)
A ruling in favor of the Justice Department, the groups said in their amicus brief, filed in March, would "facilitate the development of a growing body of secret law." The groups noted that the OLC memo at issue in the case is "just one of thousands of final opinions" the Justice Department's legal counsel's office has issued over the years.
"Secrecy in government undermines our constitutionally established system of checks and balances and the accountability that system brings," the brief said. "The rule of law on which our country is built demands transparency."
The D.C. Circuit hasn't set an argument date in the dispute.
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