In a brief filed on Friday (PDF), EFF continued its fight against secret surveillance law, asking the D.C. Circuit Court of Appeals to order the release of a secret opinion of the Office of Legal Counsel (OLC).

The opinion was generated as part of a lengthy Inspector General investigation (PDF) into the FBI's use of unconstitutional National Security Letters, so-called "exigent letters," and other illegal methods of obtaining customer records. The OLC's opinion provides the federal government with the authority to obtain private call-detail records in "certain circumstances," without any legal process or a qualifying emergency, and despite federal laws to the contrary. So far, the DOJ has refused to disclose what those circumstances are, and has even refused to disclose the statute on which the government bases its purported authority.

EFF has long argued that, when the government interprets a law in a way that shapes or affects the rights of the public, the public is entitled to know what that interpretation is. Hiding the government’s interpretations of public laws – especially when those interpretations are unlikely to be tested in court – constitutes the perpetuation of “secret law.” But secret law has no place in a democracy; on Friday, we asked the D.C. Circuit to affirm that simple principle and to order the government to disclose the OLC’s legal interpretation.

The formal opinions of the OLC are among the the most obvious, and pernicious, examples of government secret law. OLC has the authority, delegated by the Attorney General, to issue legal opinions and interpretations that are binding on other Executive branch agencies. Over the past decade, OLC opinions have provided the legal authority for some of the federal government’s most controversial (and, ultimately, illegal) practices: torture, warrantless wiretapping, and – more recently – the targeted killing of American citizens have all found legal “justifications” in OLC opinions. The Executive branch has also shrouded these opinions in secrecy.

The legitimacy of government action stems from its ability to withstand public scrutiny and criticism. As the release of the OLC opinions on torture and warrantless wiretapping demonstrated, the opinions of OLC are not infallible. The extreme secrecy of the Bush administration obstructed review, even within the DOJ, of the OLC legal theories supporting those practices. Ultimately, OLC was forced to withdraw many of the opinions after public review showed the analyses rested on incomplete and dubious legal theories. 

Moreover, OLC opinions typically address legal questions that may never be reviewed by the courts. The Executive branch has shown no hesitation in using various legal doctrines (such as the state secrets privilege, standing, or sovereign immunity) to block judicial review of government action taken in reliance on OLC opinions. Yet, at the same time, the government refuses to publicly disclose the actual legal analysis performed by OLC. The result is an undemocratic legal morass – where the action is unreviewable by the courts and practically unreviewable by Congress and the public. Democracy does not permit the Executive branch to have it both ways.

The public has a right to know how the government justifies granting itself new powers. So far, the government has failed miserably to abide by this principle. EFF looks forward to ending the practice of secret OLC legal opinions, and we look forward to pressing our case before the D.C. Circuit.     

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