The Obama administration should be permitted to keep a legal opinion secret that allows the FBI to obtain certain telephone records without any formal legal process, a Justice Department lawyer told a U.S. appeals court Tuesday.
The legal assertion by the Justice Department came in response to a lawsuit that alleges the department’s Office of Legal Counsel violated the federal open-records laws by refusing to release the memo, which says the bureau can collect international phone call data without court oversight or a “qualifying emergency.” As a result of the Justice Department’s refusal to release the memo, the circumstances under which the bureau can collect the records and the precise legal authority it relies on remain secret.
Justice Department lawyer Daniel Tenny told the U.S. Court of Appeals for the District of Columbia Circuit that the opinion should be protected from public disclosure because it was internal legal advice to the FBI, not necessarily binding policy.
“If the FBI knew that the advice it got back would be made public, then the FBI’s own deliberations would be made public,” he said. “. . . The key point is not whether all of the advice should be made public. The question is whether it should be involuntarily made public.”
The Electronic Frontier Foundation, which sued for access to the opinion, asserted that the FBI used the opinion as “cover” for its previous actions, which were under fire as potentially illegal. As a result, the foundation argued, the opinion was relied on as binding policy and cannot be withheld from the public.
“The OLC opinion at issue in this case set forth for the executive branch an authoritative, controlling interpretation of federal surveillance and privacy statutes,” Mark Rumold, a lawyer with the group, told the three-judge panel.
The lawsuit arises out of a longstanding debate over how much the public should know about the legal rationale that supports spying programs aimed at catching terrorists. The suit by the Electronic Frontier Foundation was prompted in part by McClatchy’s reporting that highlighted the existence of the memo and the department’s refusal to release it to the newspaper chain in January 2010.
For years after the Sept. 11, 2001, attacks, the FBI sought and obtained thousands of certain telephone records for international calls in an attempt to thwart potential terrorists.
The opinion by the Office of Legal Counsel was issued in response to questions that were raised by the Justice Department’s inspector general about the legality of the FBI’s handling of those records.
A reference to the opinion appeared in the heavily excised section of a 2010 inspector general report on how the FBI abused its powers when seeking the records.
The inspector general had concluded that the bureau devised an informal system of requesting the records from three telecommunications firms to create what one agent called a “phone database on steroids,” which included names, addresses, length of service and billing information.
The inspector general described a “casual” environment in which FBI agents and employees of the telecom companies treated Americans’ telephone records so cavalierly that one senior FBI counterterrorism official said getting access to them was as easy as “having an ATM in your living room.”
In revealing the existence of the memo, the Justice Department’s inspector general said: “The OLC agreed with the FBI that under certain circumstances (word or words redacted) allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.”
In January 2010, a McClatchy reporter asked for a copy of the memo under open-records laws but was denied.
In its cover letter to McClatchy, however, 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. 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.”
A federal judge agreed, but the Electronic Frontier Foundation appealed.
All three judges on the panel for the U.S. Court of Appeals for the D.C. Circuit appeared concerned about forcing the Justice Department to reveal important legal advice about a matter that might be properly withheld.
“The office is there to give advice,” Judge David B. Sentelle told the Electronic Frontier Foundation. “Advice is given to reach decision. . . . You’re saying they can’t give advice unless they’re willing to have it be publicly disclosed.”
Judge Harry T. Edwards echoed his skepticism.
“Your argument is so sweeping,” he said to the foundation lawyers. “Is there any situation that you can imagine an OLC opinion as not being disclosable?”
Edwards, however, also pressed the Justice Department about a hypothetical scenario that could apply in the case.
“They’re using the OLC’s memo now to justify what they previously did even though they’re going to have a new policy going forward,” he said. “Isn’t that law that has to be disclosed? Aren’t they using that OLC memo to justify what they previously were doing?”
Electronic Frontier Foundation 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. A separate lawsuit by the organization and the American Civil Liberties Union has prompted the release of legal opinions and other documents related to the NSA’s massive, and much larger, collection of similar telephone records.
At the outset of the Obama administration, the Office of Legal Counsel released a set of memos in which Justice Department officials endorsed the use on overseas terror suspects of what the Bush administration called “enhanced interrogation techniques,” which a wide range of critics called torture.
At the time of the release, President Barack Obama said he’d concluded the documents could be disclosed because they wouldn’t jeopardize national security and because the interrogation techniques described in the memos had been widely reported. By then, the government said, the practices were no longer in use.
Despite his decision to release the memos, Obama added: “I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security.”