To cap off Sunshine week, there was a slew of FOIA news today. For now, I’m just going to look at the response the ACLU got on its request for “OLC legal opinions and memoranda concerning or interpreting Section 215 of the USA Patriot Act.”

Josh Gerstein noted one interesting aspect of this response: the government has withheld two documents on Exemption 5–or deliberative privilege grounds. Now, the government usually claims deliberative privilege on these memos, arguing that the memos are just interpretation for whatever Executive Branch client who makes the final decision.

But this also suggests they may not be claiming these memos are classified.

Except the DOJ response does note they’ve referred one of two documents to OLC for further review.

… the Office of Information Policy has referred one document to OLC for direct response to ACLU. The document is the same as one of the two documents described above.

I wonder whether they have referred this document for full classification review.

And then there is DOJ’s all but admission that they’ve carved out the most sensitive documents on this topic–which we believe to be the use of phone GPS to get geolocation in the US. They say,

the ACLU has stipulated in ACLU v. FBI, 11 Civ. 7562 (S.D.N.Y.) that the request is limited to OLC legal opinions and memoranda concerning or interpreting Section 215 of the USA Patriot Act.

As Gerstein notes, the documents that really explain Secret PATRIOT are FISA Court opinions.

It is possible is that the OLC documents in question are not the holy grail senators, the ACLU and the Times have been seeking, but some more mundane interpretations of Section 215. Wyden and Udall suggested in their letter that the key documents amounting to “secret law” are actually classified opinions of the Foreign Intelligence Surveillance Court. Any administration legal interpretations of those opinions may also not have come from OLC, but from lawyers at the FBI or elsewhere in the intelligence community. The government is withholding other documents in the FOIA litigation as classified.

Like I say, this is a nice cap to Sunshine week–yet more obfuscation.

11 replies
  1. MadDog says:

    You are my sunshine, my only sunshine…

    I don’t know whether I’m in the ballpark or out of it totally, but I’ll throw my suspicions out there and see where it goes.

    Josh Gerstein’s piece also has this:

    “…However, at a hearing last year, FBI Director Robert Mueller confirmed that Section 215 could be used to get information on people who purchased a particular product. Mueller mentioned tracking buyers of hydrogen peroxide, which can be used for legitimate purposes such as bleaching hair and for nefarious purposes such as building a bomb…”

    Let’s think back to the Bush/Cheney regime’s Terrorist Surveillance Program (TSP). One of the major complaints was that the TSP was being used in a broad fashion to vacuum up all Internet communications and then sifted through by computer program in search of matches to keywords/triggers via the Narus system.

    In attempting to defend themselves, the Bush/Cheney regime over and over again insisted that the TSP only targeted traffic where one party to the communications was outside of the US.

    Fast forward to today and the secret Patriot Act 215 order interpretations.

    Given the commentary by FBI Director Mueller that I referenced above and in regard to his statement about “tracking buyers of hydrogen peroxide”, I wonder if the old Bush/Cheney regime’s oft asserted distinction about their TSP program only targeting traffic where one party to the communications was outside of the US has fallen by the wayside.

    It would seem logical that what FBI Director Mueller was describing was a computer program to search all domestic Internet traffic for matches to keywords/triggers of hydrogen peroxide.

    As a matter of fact, unless the FBI was receiving almost real-time order information from suppliers of hydrogen peroxide, it would seem the FBI’s only alternative would be to sift all of the domestic Internet traffic.

    Given what we all know is the ongoing penchant for total operational secrecy, I find it hard to believe that the US government would rather involve a ton of private 3rd party companies in ongoing notification about purchases of stuff instead of simply sifting through a driftnet of all domestic Internet traffic via computer.

    In the minds of the US government, civilians blab. Computers don’t (Heh!).

  2. PeasantParty says:

    Secret Police, Secret Army, Secret Laws, Secret Prisons, Secret Courts, The Great Pretender President,ahh. Sing it with me: Freedom!

    Peroxide for cleaning scratches, jewelry, toothbrushes is the new secret threat. So is fertilizer for gardeners and those that wish to have a nice lawn.

    Do these lawmakers ever think this shit may be turned on them?
    Will drones hover over their homes and watch through their windows too?

  3. DWBartoo says:


    Well yes, Maddog, “the people” are THE problem, encouraged as “they” are by certain quaint and dangerous notions, such as the silly and outmoded ideas contained in the last two-thirds of ARTICLE I, that first unnecessary amendment to the Constitution which, together with those other nine, comprise that pesky, annoying, and very counter-produtive Bill of Rights thingie … indeed, the entire Constitution is suspect, and it is just a piece of paper …

    It is, btw, a well known fact that hydrogen peroxide may be put to very nefarious uses, including the altering of personal appearance, and we should not make light, or lighter, of such things.

    Loose blabs shift links … or ship sinks … erm …all I know is that if you’ve done nothing wrong, then you should buy duct tape and plastic, that defeating terrorism is one’s job number… or, is that job number one?

    What IS one supposed to think? Is it true that computers do it better?

    Do we need a Ministry of Truth? Is anyone working on that?

    Isn’t that the job of secret patriots? Somebody has to Act “better”!

    Ah, well …


  4. Ben Franklin says:

    Then again, they may just be buying time. How long did it take for this request to process?
    Now you can appeal, given patience and time. Then, again, it may be a dead-end (not classified) that draws energy and attention. More time expended. This Admin is definitely aware of the clock.

    Seems Obama has even convinced the Israelis to wait until after November. That’s no easy task.

  5. P J Evans says:


    Do these lawmakers ever think this shit may be turned on them?

    No, because they’re important people and laws don’t apply to them. Until they need to use one for protecting themselves from the consequences of their own actions, of course.

  6. Ben Franklin says:

    Holders FOIA policy….

    A Presumption of Openness

    As President Obama instructed in his January 21 FOIA Memorandum, “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.” This presumption has two important implications.
    First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.
    Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.

  7. emptywheel says:

    @MadDog: Nah, we pretty much know what’s gone down.

    There is the program using 215 to get hydrogen peroxide and acetone, which I actually first pointed to. But that’s not Secret PATRIOT. Wyden has strongly suggested that Julian Sanchez’ explanation–that it’s a program to use cell GPS data to get geolocation on anyone they want in the US. It is designed to be able to find out retrospectively who everyone was hanging out with. So it effectively collects ALL geolocation data, just in case.

  8. MadDog says:

    @emptywheel: Maybe they’re both Secret Patriot because how else would the FBI get knowledge of hydrogen peroxide and acetone purchases unless they domestically sniffed the Internet?

    Yeah, I know they could request the info via 215s from the suppliers, but I still can’t see them trusting that to be all-inclusive and timely.

  9. Story of O says:

    > Do these lawmakers ever think this shit may be
    > turned on them?

    I’ve often thought that if government personnel want to watch everything the people do, then the people should be able to watch everything these government personnel do. After all, if they have nothing to hide, why shouldn’t I be able to review all of Bob “Traitor” Mueller’s personal emails, or see all his credit card receipts, or watch him on camera as he works at his desk?

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