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Speaking before a panel of three judges with the U.S. Court of Appeals District of Columbia Circuit, Justice Department lawyer Daniel Tenny
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."
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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Speaking before a panel of three judges with the U.S. Court of Appeals District of Columbia Circuit, Justice Department lawyer Daniel Tenny
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."
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."
_____________________
Speaking before a panel of three judges with the U.S. Court of Appeals District of Columbia Circuit, Justice Department lawyer Daniel Tenny
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."
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."
_____________________