Nov 27, 2013
The Obama administration should be permitted to keep their secret surveillance law secret, a Justice Department lawyer told a U.S. appeals court Tuesday in a lawsuit brought forth by the Electronic Frontier Foundation (EFF).
EFF brought forth the lawsuit against the DoJ for their failure to disclose a document produced by the Office of Legal Counsel (OLC) that the FBI claims provides it with the authority to obtain private call-detail records in "certain circumstances," without any legal process or a qualifying emergency.
They argue that when a legal opinion is adopted by an agency as legal justification for its action, the opinion loses its advisory nature and is thus subject to disclosure. Failure to do so amounts to what senators Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) refer to as "secret law."
"The OLC opinion at issue in this case set forth for the executive branch an authoritative, controlling interpretation of federal surveillance and privacy statutes," argued EFF staff attorney Mark Rumold.
"In its cover letter to McClatchy, the Office of Legal Counsel disclosed more detail about its legal position, specifying a section of a 1978 federal wiretapping law that the Justice Department believes gives the FBI the authority," the paper reports. "That section of the law appears to be what was redacted from the inspector general's report and reveals the type of records the FBI would be seeking."
Nonetheless, Tenny told the judges Tuesday "there's no evidence" that the FBI relied on the memo after it was issued.
"There's no evidence that the FBI ever did anything to anyone in the public based on the rationale in this OLC opinion," he said.
The opinion, he said, is "classic deliberative process material."
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