Feingold, Durbin, and Wyden Demand the OLC Opinion on Exigent Letters

As I reported yesterday, the Dawn Johnsen-less OLC wrote an opinion on January 8 retroactively authorizing the FBI’s inappropriate use of the exigent letters to snoop on Americans’ telecomm records.

Now, Senators Feingold, Durbin, and Wyden, have demanded that opinion from Eric Holder. Of note, they tie their demand into DOJ IG Glenn Fine’s comment that DOJ should notify Congress of the opinion and this use of exigent letters so it can consider legislation on that count.

We write specifically because we believe the Department should immediately provide to Congress a copy of the January 8, 2010, Office of Legal Counsel (OLC) opinion that is referenced in the OIG report and that apparently interprets the FBI’s authority to obtain phone records. Although much of the information about the OLC opinion is redacted in the public version of the OIG report, the opinion appears to have important implications for the rights of Americans. The report states that “the OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these [phone] records on a voluntary basis from the providers, without legal process or a qualifying emergency.” (p. 264) It further states that “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” (p. 265) And finally, it states that the OIG recommends “that the Department notify Congress of this issue and of the OLC opinion interpreting the scope of the FBI’s authority under it, so that Congress can consider [REDACTED] and the implications of its potential use.” (p. 268)

In light of the OIG’s recommendation, please provide Congress with the January 8 OLC opinion immediately.

Remember, as members of the Senate Judiciary Committee, Feingold and Durbin (and probably Senate Intelligence Committee member Wyden) have seen the unredacted report, including a description of the OLC’s agreement of the FBI’s use of the letters. And now they’re demanding the opinion itself.

Though, you’d think that, given Fine’s recommendation that DOJ “notify Congress … of the OLC opinion,” the Senate wouldn’t have had to ask.

  1. readerOfTeaLeaves says:

    A bit more background: when Hayden was before the Senate Intel Committee for his appointment as CIA Dir, I recall Ron Wyden stating publicly that there had been times (evidently, multiple timeS) that as a Senate Intel member, he had learned things from picking up the NYT in the morning.

    Which made quite clear that there were serious institutional problems in DC, that BushCheney was disdainful of Congress, and probably left Sen Wyden with a sense that ‘sunlight’ is a good thing.
    Sunlight, please…

  2. BoxTurtle says:

    I’m starting to think that when they say “notify congress”, they specifically dis-include Feingold.

    Boxturtle (Well, how would you like to explain Bad Behavior to the one Senator you can’t threaten or buy?)

    • emptywheel says:

      Remember, presumably bc he’d be one of the first Senators members of both parties would love to jettison, he is very careful about protecting stuff he learns in classified settings. So even though he is asking for this, it doesn’t mean he hasn’t seen what the IG report says, if not more.

      • emptywheel says:

        And in fact we’re in a parallel situation on the illegal wiretapping OLC opinions. He HAS seen those. But he is working the angles, to no effect, to try to get them releasedt o Congress, at least.

      • BoxTurtle says:

        Yeah, he’s asking that CONGRESS be provided with the report. I agree, he’s likely already seen at least major parts of it and he wants the rest of congress to see it.

        presumably bc he’d be one of the first Senators members of both parties would love to jettison

        Swine. Feingold for President!

        Boxturtle (Must be nice to be able to declare a premeditated unlawful act lawful)

  3. Mary says:

    Feingold does have to be very careful. Since Obama’s election, it’s like Leahy has fallen off the face of the earth and I have to wonder a bit about any initiatives jointly with Durbin. He’s a nice enough man who once had decent instincts, but he really has been all about making Obama look as good as he could make him look.

    There’s so much right now, hard to get too excited over any of it – Feingold can’t really do anything much and sometimes it’s unhealthy to expect much. If they get it, it will be in lieu of lots of other things on other topics, including some that are life and death, ever being addressed.

    OT, but Panetta, Obama and the CIA can read this and chortle out a “ich bin ein Abu Dhabians:


    A member of Abu Dhabi’s ruling family has been found innocent of the torture and rape of an Afghan man, despite the presence of a 45-minute tape that allegedly shows his role in the torture.

    Nifty touch – that not only was he found innocent, but the guy who shot the tape was found guilty of blackmail.

    ” the judge did not pass down his reasoning for the acquittal”

    YOu have to wonder if this isn’t the guy that could get bipartisan support if Obama nominated him to the next vacancy.

  4. LabDancer says:

    In your earlier thread on this subject, I tried to lay out everything that might help us to infer the thrust of the OLC memo on the issue of whether the OIG might be reporting Obama “gorging” on poison fruit; but I missed footnote 283:

    “The FBI has stated that it does intend to rely on [approximately one full line REDACTED]. However, that could change, and we believe that appropriate controls on such authority should be considered now, in light of the FBI’s past practices and the OLC opinion.”

    [all emphasis added by me]

    There’s still ambivalence as to whether the OIG is only concerned about the OLC opinion due to how the FBI has played silly bugger before, or the OLC opinion alone would have justified the expression of concern. The former would fit the scenario I suggested in the previous thread as one possibility; the latter would seem more consistent with these three Senators being sufficiently moved to frame, memorialize and publicize a demand [leave aside Feingold: Durbin is supposedly quite close to the President, Wyden has a very long credible record of thoughtful propriety, and neither has an apparent oblique motive]; neither necessarily means Obama is in current need of a vomitarium; both mean the OIG is concerned that the office of the President, whether it be held by Obama or by whoever else might have designs at putting his mitts on the seal of that office, might find the fare irresistible, or be oblivious to how it was cooked up.

    • qweryous says:

      Your analysis here is appreciated.

      Having read the footnote 283 and your posts on the previous thread,I’ve not seen Discussion of the OLC opinion requested on Aug 20,2007 and received Nov 5, 2008 on among other things ECPA issues. See page 73 (original numbering) of OIG report.)

      It is not clear to which OLC opinion is the referral to in footnote 283.

      Note also that in Aug 2007, the OLC was asked to answer three Questions, there appears to be discussion of only one of the questions asked in the OIG report ( and only the answer to it).

      Apology tendered in advance if this is my misunderstanding of this.

      EDIT: I’ll also question the date of Nov5,2008 as the date of the OLC opinion. Question the coincidence that is (WRT to election day).

      • LabDancer says:

        You are strictly correct in asserting it “is not clear to which OLC opinion is the referral to in footnote 283” — particularly given both the paragraph that ends with it and the preceding one are fully redacted* — but I do think the context strongly suggests the one issued on the 75th anniversary of St. Elvis.

        It’s not just that other discussion of the OLC opinion that was requested in 2007 and issued in 2008 appears over 200 pages earlier. It’s also that one of the issues the FBI framed in its 2007 request is described in some detail [to involve requests from the FBI to the service providers for fairly superficial — though no less verbotten — information, such as whether the service provider had target X listed as a subscriber], and the area of the OIG report in which the 2008 OLC opinion is raised is called “sneak peeks”.

        All that suggests to me a dynamic where the FBI’s 2007 request reflected, shall we say, a heightened consciousness of having to address the mess, one would think from, well:

        most certainly the first in the series of OIG’s reports [issued in March 2007; then the FBI request to OLC in August 2007];

        being informed or gathering that since the OIG had decided to break up its review of issues, the FBI would be imprudent in taking any solace from the subject having been left out of the first report;

        the combined effect of:

        the boot the Republicans took in the cojones from voters in November 2006,
        President Bush’s subterranean public approval rating blues,
        the Dems having AGAG on slow broil through most of that year, and
        the recent anxiety in getting the PAA extended into 2008,

        all of which would suffice to suggest an atmosphere of looming reckoning, but to it I’d add to the soup the odd fact of the OLC not responding to supposedly narrow, specific issues for over a year — or, in other words, not until Stephen Bradbury was in full mode of re-writing history — which suggests that, whatever the other two issues the FBI framed for the OLC to answer very likely met with the same quality [I use the term advisely.] of denial; whereas when we get back to pages 264 etc, support, or even the mere appearance of it, rather than denial, is what the OIG is suggesting Congress should be concerned about.

        In sum, I’m drawing a distinction between a purer form of ambivalence that’s evident from the unredacted parts of this third OIG report on the one hand, and the situation of inferences more readily available to be drawn from the overall context on the other.

        *I wanted to raise this point earlier: It’s interesting that the redactions here come from the OIG’s just accepting requests and suggestions from the FBI; IOW there’s no suggestion of any fight over these. Might that explain the demand letter from the three senators?

    • readerOfTeaLeaves says:

      the OLC opinion alone would have justified the expression of concern….[and]… would seem more consistent with these three Senators being sufficiently moved to frame, memorialize and publicize a demand [leave aside Feingold: Durbin is supposedly quite close to the President, Wyden has a very long credible record of thoughtful propriety, and neither has an apparent oblique motive];

      So shall I expect the viperous Liz Cheney to pop out of one of my desktop windows any second now…?

      I’m not an atty.
      Details, please…?

  5. cocktailhag says:

    Wyden, my Senator, is finally redeeming himself a bit from his premature and destructive “Healthy Americans Act,” which, surprise, looked just like the final Senate bill, only months before anybody expected anything so lame. He knows where his bread is buttered, but sometime his long-lost self comes through the piles of money.

    • readerOfTeaLeaves says:

      OT, But Wyden was the first Senator that I heard talking about the fact that the current healthCos are monopolies with zero real competition in most states. Which is more than I can say for just about anyone other than Howard Dean, so I cut him a ton of slack.

      • cocktailhag says:

        He’s not a bad guy overall, but Merkley runs circles around him these days as a progressive. I sense a bit of a foxhole conversion, kind of like Obama talking tough about the banks.

  6. polarbear says:

    Thanks so much for bringing this to light. With so many other things going on, it’s easy to brush aside our civil liberties. This seems stinky, from here. I hope that eventually we can revisit the PATRIOT Act and FISA, as well as the ability to imprison folks without due process.

  7. rafflaw says:

    This is an additional reason for a thorough investigation into the crimes of the Bush regime. I would like to know who comprises the current OLC to make sure that there are no Bush era holdovers.

  8. dopeyo says:

    could one of the reasons for the lackluster support of the johnsen nomination be that she would not have taken direction on this opinion? she might have presented an obstacle to looking forward, i would hope. JMHO.

  9. BMcGarth says:

    Folks,maybe GWBush is really Obama.Here is what I mean.

    Maybe GWBush is wearing an Obama mask and thus is still running the ship.

    How do you explain someone who when running for Prez ridiculed the previous occupant of 1600 Pennsylvania Ave for his policies and now without any hesitation is using previous ridiculed policies.

    Seems like we have been in an unending nightmare for 9-effing years.

    Don’t count on Dawn Johnsen being confirmed,just like Errol Southers and Van Jones before him,the Obama WH ain’t going to fight for anyone’s confirmation.Remember,the Prez wants to be liked by every Gop scum.And is more than willing to knee cap his own supporters for bipartisanship.

    Remember,Rahm’s salute to the left,think it went something like “Eff the left.”

    • Peterr says:

      Because they lost the will to demand.

      The laws are pretty clear, but if they don’t stand up for themselves, it’s no wonder the Executive branch doesn’t provide it to them as required.

  10. bobschacht says:

    Thanks for this discussion.

    Last night, as I lay in bed, a strange idea occurred to me. Remember, that previous day we heard of the momentous Supreme Court decision opening the floodgates of corporate billions into our political process.

    My idea was to wonder if, with all of this illegal hoovering and eavesdropping that our wonderful government has learned how to do, to wonder if Obama has put someone (Rahm?) to the task of keeping a file on each of the MOTU who might try to run nasty ads against Obama (or his policies, proposals, or partners). Y’know, just to keep them in line.

    Maybe its thoughts like that, that make Obama reluctant to abandon all those nifty tools that George & Dick left for him to use.

    Bob in AZ

  11. Sparkatus says:

    Just looking at the segment you post, aren’t the redactions strange?

    It looks to me like what’s been redacted are the authorities under which action is being taken. How would that in any way be classified? Is that standard?

    I’m tempted to try filling in AUMF or something else equally disturbing.

  12. JohnLopresti says:

    @25, I think Dr. CKelley of signing statement expertise, had an interesting, perhaps relevant article on his government process blog. My impression is Olc is behind the exec privilege firewall. Kelley is saying the last phase of Bushco, and much of Obama*s tenure, have seen rerouting of what would have been an open signing statement, instead into an Olc opinion. I have yet to examine what Joyce Green*s coherentbabble is making of the issue, she has an archive of signing statements there. Maybe the instant Feingold Durbin Wyden missive in re exigent letter opinion at olc represents only part of congress* ire at other rerouted materials behind the olc firewall and missing from the signing statement open website. Perhaps this is old news; the discussion by Dr. Kelley begins around the penultimate paragraph there in a diary posted January 16 2010.

  13. fflambeau says:

    Isn’t Feingold also on the Senate Intelligence Committee?

    Russ Feingold in 1999 voted against repealing the Depression-era safeguards put in place to protect businesses, investors, and consumers. In 2008, Feingold voted against the Troubled Asset Relief Program (TARP) and in 2009 voted against authorizing more funding for TARP.

    He deserves progressive support in his November reelection campaign.