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).

Speaking before a panel of three judges with the U.S. Court of Appeals District of Columbia Circuit, Justice Department lawyer Daniel Tenny report on the hearing, EFF lawyers said they are concerned that other agencies, such as the CIA or the National Security Agency, may have relied on the memo for similar activities.

"The public has a fundamental right to know how the federal government is interpreting federal surveillance and privacy laws," said Rumold in a statement ahead of the hearing. "These interpretations affect wide swaths of society—the public, communications providers, and federal agencies—and the government cannot be allowed to shield its interpretations of law from public scrutiny. Secret surveillance law simply has no place in a democratic society."

The suit was prompted in part by a January 2010 McClatchy report that highlighted the existence of the memo and the department’s refusal to release it to the newspaper chain.

"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."

They continue:

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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