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Strengthening Checks and Balances

Friend of the Court: POGO Joins Fight for Sunshine

The Project On Government Oversight recently joined Citizens for Responsibility and Ethics in Washington (CREW) and other colleagues in a “friend of the court” (amicus curiae) brief, supporting the Electronic Frontier Foundation (EFF) in its attempt to compel the government to release a memorandum created by the Office of Legal Counsel (OLC). The memo, which EFF seeks under the Freedom of Information Act (FOIA), concerns the scope of FBI authority under federal surveillance laws. The groups argue that the government’s refusal to disclose this memorandum and others like it “brings to the fore OLC’s central role in developing and maintaining a body of secret law” that causes harm to our democracy. The case also highlights something that POGO has pointed out before: the Administration’s secretive national security state is working at cross-purposes with the President’s transparency objectives.

The OLC, part of the Department of Justice (DOJ), interprets federal laws for the Attorney General and agency heads. These interpretations are then binding on the executive branch. The amicus brief explains that there are thousands of OLC final opinions on a variety of issues, from the adjustment of population data to the legality of using enhanced interrogation techniques. Although many of these opinions are made public, and in fact OLC guidance dictates that the agency operate under a “presumption that it should make its significant opinions fully and promptly available to the public[,]” the chief concern highlighted by the brief is that there is a body of opinions that the DOJ refuses to release. Keeping these opinions under wraps allows for a vast body of law that must be followed by government agencies, but that the public is not able to see.

The opinion in question was created for the FBI at a time when the agency was under a DOJ Inspector General investigation concerning its use of national security letters (NSLs). NSLs are documents that allow the FBI to obtain the communications records of ordinary Americans if the agency claims that the information pertains to a national security investigation. Unlike search warrants, NSLs are not reviewed by a judge prior to issuance, and entities (usually communications service providers) receiving the letters are prohibited from discussing them, making oversight difficult.

EFF is appealing a federal district court ruling from last September that agreed with DOJ arguments that the document should be protected because portions are classified and because releasing the document would either inhibit the deliberative process or disturb the attorney-client privilege between the OLC and the FBI. If the court of appeals affirms the lower court’s decision, the document will remain secret. The amicus groups maintain that “[o]nly by requiring the disclosure of the OLC Opinion at issue can this Court stop the escalating secrecy that threatens to undermine the proper functioning of our government.”

The Washington Post editorial board points out that “there remains a storehouse of unreviewable government legal analysis determining what the government does on a daily basis,” and that there is a “critical interest that the public has in knowing how the executive branch interprets the laws the Constitution tasks it to enforce.” POGO couldn’t agree more.

The Washington Post also joined the CREW brief, along with POGO, the American Civil Liberties Union, The Constitution Project,, and the Brennan Center for Justice. The groups maintain that the harm of keeping the opinion secret outweighs the interests the DOJ seeks to protect. They argue that the DOJ improperly relies on FOIA Exemption 5 because the OLC opinion is a final agency decision, not a deliberative document that would impair the agency’s decision-making functions if released, and because the opinion is not the product of an attorney-client relationship between the OLC and FBI.

Withholding the document is directly contrary to the purpose of FOIA, which favors disclosure of information with only narrow exemptions. Although the amicus groups note that portions of the memo properly classified may qualify for protection under FOIA Exemption 1, they do not believe that this would justify withholding the entire document. When the FOIA exemptions do not apply, as the amicus groups argue here, the public has the right to know the laws that bind the government.

Furthermore, without transparency regarding the law that applies to the executive branch, the other two branches of government are crippled. The judicial branch cannot fully exercise its oversight function, and Congress may not know when clarifying legislation is needed. Not only should the court order that this memorandum be disclosed, but the DOJ should take proactive steps to make all OLC opinions publicly available.

The case is Electronic Frontier Foundation v. United States Department of Justice, No. 1:11-cv-00939-RJL (D.D.C.) (Judge Richard J. Leon).