March 18, 2009 | By Kurt Opsahl

Sunshine Week: February 8, 2002 NSA Surveillance Memo

Yesterday, we published a list of missing documents related to the NSA warrantless surveillance program as part of EFF's celebration of Sunshine Week, and began to analyze what some of these missing documents might be.

Today, we turn to a document known as OLC 62. According to a declaration filed by Deputy Assistant Attorney General Steven Bradbury:

OLC 62 [is] a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.

Since OLC 62 is a document from a Freedom of Information Act lawsuit seeking documents about the NSA warrantless wiretapping program, we know that the memo dealt with that subject. At the time, John Yoo was the only Deputy Assistant Attorney General in the Office of Legal Counsel (OLC) who was cleared for the NSA Program, indicating he was the author.

On March 2, 2009, the DOJ released a memo, dated January 15, 2009, that rescinded a February 8, 2002, memo from OLC Deputy Assistant Attorney General John Yoo to William J. Haynes II, the General Counsel of the Department of Defense. It would be quite a coincidence if this was not a reference to the same memo.

The January 15, 2009, memo was written by Bradbury. Bradbury describes the February 8, 2002, memo as incorrectly asserting that Congress did not include a clear statement that FISA overrode the president’s “inherent” authority to conduct warrantless wiretapping, citing page 13. This indicates is it at least 13 pages long.

The January 15, 2009, memo redacts the subject of the February 8, 2002, memo, citing to “Re: [Classified Matter].” Thus, while we know that the February 8, 2002, memo dealt with the so-called inherent authority for the Executive to conduct warrantless wiretapping in violation of FISA, we do not know what the “certain hypothetical activities” were. However, the use of the term “hypothetical” suggests that, on February 8, 2002, the activities were not yet operational.

There are a couple of interesting Department of Defense surveillance initiatives around that time that one would expect the DOD to seek legal advice before conducting. One is the Total Information Awareness (TIA) program, which was established at the Department of Defense (DOD) in January 2002. (See DOD’s Executive Summary).

Another is the DOD’s Counterintelligence Field Activity (CIFA). On February 19, 2002, the DOD issued, DOD 5105.67, a directive establishing CIFA. (See National Security Archive’s Electronic Briefing Book on CIFA).

Both TIA and CIFA have since been shut down.

The public deserves to know about the programs that the DOD considered in reliance on John Yoo’s flawed (and subsequently withdrawn) legal analysis. We urge the Obama Administration to release this memo.

Updated, April 8 2009: Recently, the government filed a brief in the ACLU's Freedom of Information Act (FOIA) case over OLC 62. In the brief, the government confirmed that the January 15, 2009 OLC memorandum "references to OLC 62," and acknowledged "that OLC 62 ... contains a particular 'questionable proposition' of law." OLC 62, which addressed "the legality of certain hypothetical activities," misapplied the Foreign Intelligence Surveillance Act. Nevertheless, the government asserted the contents of OLC 62 remain either "classified or nonsegregable from information that is classified," and insisted that it remain at the bottom of a deep, dark well of secrecy.

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