The Common Commercial Services OLC Opinion Affecting Cyber Policy Is Over a Decade Old

 

I’ve been meaning to go back to an exchange that occurred during Caroline Krass’ confirmation hearing to be CIA’s General Counsel back on December 17. In it, Ron Wyden raised a problematic OLC opinion he has mentioned in unclassified settings at least twice in the last year (he also wrote a letter to Eric Holder about it in summer 2012): once in a letter to John Brennan, where he described it as “an opinion that interprets common commercial service agreements [that] has direct relevance to ongoing congressional debates regarding cybersecurity legislation.” And then again in Questions for the Record in September.

Having been ignored by Eric Holder for at least a year and a half (probably closer to 3 years) on this front and apparently concerned about the memo as we continue to discuss legislation that pertains to cybersecurity, he used Krass’ confirmation hearing to get more details on why DOJ won’t withdraw the memo and what it would take to be withdrawn.

Wyden: The other matter I want to ask you about dealt with this matter of the OLC opinion, and we talked about this in the office as well. This is a particularly opinion in the Office of Legal Counsel I’ve been concerned about — I think the reasoning is inconsistent with the public’s understanding of the law and as I indicated I believe it needs to be withdrawn. As we talked about, you were familiar with it. And my first question — as I indicated I would ask — as a senior government attorney, would you rely on the legal reasoning contained in this opinion?

Krass: Senator, at your request I did review that opinion from 2003, and based on the age of the opinion and the fact that it addressed at the time what it described as an issue of first impression, as well as the evolving technology that that opinion was discussing, as well as the evolution of case law, I would not rely on that opinion if I were–

Wyden: I appreciate that, and again your candor is helpful, because we talked about this. So that’s encouraging. But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?

Krass: No I do not currently have that authority.

Wyden: Okay. Who does, at the Justice Department?

Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual. That happens only in extraordinary circumstances. Normally what happens is if there is an opinion which has been given to a particular agency for example, if that agency would like OLC to reconsider the opinion or if another component of the executive branch who has been affected by the advice would like OLC to reconsider the opinion they will  come to OLC and say, look, this is why we think you were wrong and why we believe the opinion should be corrected. And they will be doing that when they have a practical need for the opinion because of particular operational activities that they would like to conduct. I have been thinking about your question because I understand your serious concerns about this opinion, and one approach that seems possible to me is that you could ask for an assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion. I can give you my assurance that if I were confirmed I would not rely on the opinion at the CIA.

Wyden: I appreciate that and you were very straightforward in saying that. What concerns me is unless the opinion is withdrawn, at some point somebody else might be tempted to reach the opposite conclusion. So, again, I appreciate the way you’ve handled a sensitive matter and I’m going to continue to prosecute the case for getting this opinion withdrawn.

The big piece of news here — from Krass, not Wyden — is that the opinion dates to 2003, which dates it to the transition period bridging Jay Bybee/John Yoo and Jack Goldsmith’s tenure at OLC, and also the period when the Bush Administration was running its illegal wiretap program under a series of dodgy OLC opinions. She also notes that it was a memo on first impression — something there was purportedly no law or prior opinion on — on new technology.

Yet for some reason, it was not among the opinions Goldsmith chose to withdraw in 2004 (assuming he didn’t write it), nor will Eric Holder even respond to questions about why he won’t withdraw it now.

I wonder if Wyden has asked whether some opinion written since that time relies back on that 2003 opinion, just as the illegal wiretap programs relied back on Yoo’s Fourth Amendment stripping one?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. Snoopdido says:

    Does anyone else get the feeling that the Office of Legal Counsel is some bottomless black hole of OLC opinions that have never seen the light of day?

    And who was it exactly that decided that the OLC’s only client was the government, and most clearly not the American public?

  2. bloodypitchfork says:

    @Snoopdido:
    quote”Does anyone else get the feeling that the Office of Legal Counsel is some bottomless black hole of OLC opinions that have never seen the light of day?”unquote

    Yes. Me. However, it’s finally dawning on me what the OLC really is. Figure it this way. In simple terms they are the enablers of tyranny by virtue of sentencing opinions. Jim Comey knows this as fact. His emails are living proof. And so is this…:

    Wyden: Okay. Who does, at the Justice Department?

    Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual. That happens only in extraordinary circumstances. Normally what happens is if there is an opinion which has been given to a particular agency for example, if that agency would like OLC to reconsider the opinion or if another component of the executive branch who has been affected by the advice would like OLC to reconsider the opinion they will come to OLC and say, look, this is why we think you were wrong and why we believe the opinion should be corrected. And they will be doing that when they have a practical need for the opinion because of particular operational activities that they would like to conduct. I have been thinking about your question because I understand your serious concerns about this opinion, and one approach that seems possible to me is that you could ask for an assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion. I can give you my assurance that if I were confirmed I would not rely on the opinion at the CIA.”unquote

    Opinion of the CIA. marvelous. These pricks must have pressured Voronin for his secret.

  3. Snoopdido says:

    @bloodypitchfork: Somebody sometime ago must have figured out that making themselves judge, jury and executioner was far better than leaving such important positions to Congress and the courts. Probably Ed Meese, but if not, philosophical kin of his.

  4. Mindrayge says:

    If I had to hazard a guess I would think the OLC memo has to do with “the cloud”. In that they likely hold the opinion that the same rationale behind Smith v. Maryland applies to any and all information stored in “the cloud”. It was around that time frame (2003) where the very beginnings of the push toward “the cloud” started its slow ramp up. Web-based e-mail was already well established, online backup storage was already going on, online photo sharing sites and such were in place, Google Docs, etc.

    While e-mail was certainly covered by prior decisions and statutes (as well as other forms of communication) the rest of the content that goes into “the cloud” is not covered by statute or decisions. So I suspect the OLC memo argues that even though agreements with providers may include privacy assurances those assurances are rendered moot with respect to the government and warrant requirements using the Smith v. Maryland rationale. Given that everything we see in this whole Intelligence Community debacle are warrant avoidance schemes and more explicitly 4th amendment protection avoidance schemes I would say this is what it is about.

    It is the only thing that I can think of that would have seen a significant evolution of since that time in terms of adoption and overall usage.

  5. bloodypitchfork says:

    @Mindrayge: “So I suspect the OLC memo argues that even though agreements with providers may include privacy assurances those assurances are rendered moot with respect to the government and warrant requirements using the Smith v. Maryland rationale. Given that everything we see in this whole Intelligence Community debacle are warrant avoidance schemes and more explicitly 4th amendment protection avoidance schemes I would say this is what it is about.”unquote

    While emptywheel rolls on daily and I’m two days late getting back to this post, I had to comment on your comment. Great analysis. Indeed, that is what this whole OLC shit about…making up shit as they go to cover their ass and hold We the People at bay while shoving the NSA down their throats. The Framers would be tieing hangman’s nooses about now.

  6. Mindrayge says:

    @bloodypitchfork: Government officials (elected or appointed), bankers, and corporate officials are the worker bees for the power structure that controls this country. Those would be the wealthiest of the wealthy. The surveillance state exists solely to protect the interests of this relatively small group of wealthy people. It may not seem like it but they are in the process of hanging themselves with their own rope. This isn’t going to end well.

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