The Most Transparent Administration Ever Hides More OLC Opinions

Ryan Reilly has liberated a list — such as DOJ would release — of the OLC opinions written under Obama. As he notes, DOJ has refused to even give him a list, much the number, of the classified OLC memos.

What’s more interesting is what wasn’t included: The office stated that it was withholding, in full, 11 lists of classified OLC opinions. Because the length of each list is unknown, it’s unclear how many classified opinions the OLC has issued during the Obama administration.

And it has redacted a ton of the names of unclassified opinions, citing deliberative privilege.

The titles of many OLC opinions were fully redacted in the lists provided, with a Justice Department official writing that the titles were “protected by the deliberative process, attorney-client, and/or attorney work-product privileges.” The names of the lawyers who wrote a number of opinions — including the memo on the president’s use of recess appointments during the Senate’s pro forma sessions — were also blacked out because their disclosure would “constitute a clearly unwarranted invasion of personal privacy,” the official wrote.

Some of the memos mentioned in the list have already been disclosed online by the OLC.

He also notes one memo the existence of which has already been revealed doesn’t appear on the list.

The Justice Department even redacted the title of the opinion on whether the president could unilaterally ignore the debt ceiling limit, though the existence of that memo was disclosed in response to a FOIA request from Talking Points Memo in 2011.

There’s in fact at least one other known OLC opinion that doesn’t show up on the list: a January 8, 2010 memo on whether the Electronics Communication Privacy Act would prevent telecoms from willingly turning over international communications to the government. It was first revealed in a January 2010 DOJ IG Report on Exigent Letters (see this post for background).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 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 February 2011, McClatchy’s Marisa Taylor received a FOIA denial for the memo, although in denying her request DOJ revealed that this was the section of the law the memo discussed.

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Effectively, DOJ has already made clear that the memo says it can get international communications with no legal process.

But it didn’t release the name of the memo to Reilly.

There are two explanations for that. It has redacted the names of many OLC opinions under deliberative process, which it often argues means that it did not rely on the memo and therefore it did not influence the Executive’s final decision. That’s probably what happened with the debt ceiling memo; we know Obama hasn’t unilaterally raised the debt ceiling, meaning he hasn’t relied on the memo, so even though it has confirmed the memo exists, DOJ is hiding the memo because the Administration didn’t ultimately rely on it.

It may have redacted the title of the ECPA decision for the same reason. In the IG Report, at least, FBI claimed it would not rely on the opinion (no doubt meaning it would get all our communications via some other means).

Alternately, it could be considering this memo, which has been discussed at length, classified. Stranger things have happened with this Administration.

Update: Just checked, and via email at the time, Taylor said this is what DOJ told her:

The cover letter dated Feb. 8, 2011 to McClatchy said the OLC memo was protected by the “deliberative process privilege” under Exception Five. The letter also said the memo is “classified” and therefore “exempt pursuant to Exemption One, 5 USC 552 (b)(1).” The letter goes on to describe the memo as “a January 8, 2010 OLC memorandum analyzing the authority of the FBI under Section 2511 (2)(F) of the Stored Communications Act, 18 USC 2511 (2)(f).”

So they’re at least claiming a b5, and possibly claiming that its very name remains classified, in spite of repeated references to it in unclassified form.

In any case, the refusal to release even the name of memos that we know exist sure boosts the Administration’s claim to be the most transparent ever!

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+1Email to someone

5 Responses to The Most Transparent Administration Ever Hides More OLC Opinions

  • 1
  • 2
  • 3
  • 4
  • 5
Emptywheel Twitterverse
emptywheel @JasonLeopold Given Lutz' mention of contractors is it safe to assume that's what SAIC was doing when billing $40M?
1mreplyretweetfavorite
emptywheel RT @astepanovich: Debate on no good, very bad surveillance law in Kenya leads to physical fighting http://t.co/JnCksvdJI1 More on law: http…
13mreplyretweetfavorite
emptywheel @ncweaver But you COULD do it sparingly, especially if you used a cut-out?
18mreplyretweetfavorite
emptywheel @ncweaver Also, what would prevent them from doing this to wiretap offshore to get around FISA, as they moved Internet dragnet offshore?
19mreplyretweetfavorite
emptywheel @ncweaver 215 is just a teeny part of phone dragnet, and it's all linked.
23mreplyretweetfavorite
emptywheel @gburneston4 Might want to look up 1) what "anonymous" means 2) how links work before you suggest I'm hiding ID.
24mreplyretweetfavorite
emptywheel Oh. When Theresa Shea and James Clapper say phone dragnet is index to content, this is what they mean. http://t.co/RQQ4JHiamr
26mreplyretweetfavorite
emptywheel @gburneston4 You're apparently pretty ignorant about me, starting with what that "fake name" is.
29mreplyretweetfavorite
emptywheel RT @hrprogressive: Land of the Free, Home of the Please Don't Hurt Us for Expressing Controversial Ideas, apparently.
30mreplyretweetfavorite
emptywheel Imagine them cowering from courageous scripts with the same bravery they're ordering Team America to be silenced with.
32mreplyretweetfavorite
emptywheel If you didn't already know, now we know why big Hollywood movies suck ass. Bc they're cowards.
33mreplyretweetfavorite
emptywheel Thinking inviting Raul Castro for White House visit might be best way to set off GOP self-combustion before 2016 season.
42mreplyretweetfavorite
February 2013
S M T W T F S
« Jan   Mar »
 12
3456789
10111213141516
17181920212223
2425262728