While 2013 was a banner year in the fight against secret surveillance law, the fight in 2014 got off to an unfortunate start. Last Friday, in a case brought by EFF, a federal appeals court in Washington, D.C. ruled (pdf) that the Department of Justice could withhold from the public a secret legal opinion of the Office of Legal Counsel (OLC).
EFF sought the disclosure of the OLC opinion because it purportedly allows the FBI to access the private call records of phone company subscribers without providing any legal process, in spite of federal laws to the contrary.
In an editorial published today, the New York Times lamented the Court’s decision, noting:
Withholding the opinions of the Office of Legal Counsel, which provides legal advice to the president and executive agencies, is deeply troubling. The office’s advice often serves as the final word on what the executive branch may legally do, and those who follow that advice are virtually assured that they will not face prosecution.
Over the past decade, OLC opinions have provided the legal basis 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.
Although the D.C. Circuit’s decision is a setback, it won’t be the final word on the government's ability to shield these vitally important legal opinions from the public. Other courts could decide the issue soon, we will likely seek review of the decision in our case, and we are hopeful Congress will step in to clarify what has been the case all along: the public has a right to access the documents that constitute the Executive branch's law.