Secret laws continue to propagate in the US

Seal of the United States Department of Justice
Seal of the United States Department of Justice (Photo credit: Wikipedia)

The Department of Justice is seeking to keep secret a memo written by the Office of Legal Counsel which claims that the FBI can request records from telecommunications companies without issuing national security letters or warrants in advance. In other words, the DOJ claims a right to side-step both the warrant and NSL process based on a memo which is not public. In effect, the DOJ is relying on secret law, which is among the techniques of repressive, totalitarian regimes. It is simply wrong to continue to create such secret laws in a democratic country supposedly governed by the rule of law.

They do this notwithstanding a redacted a DOJ Office of Inspector General report questioning the legality of such information requests. Check out page two of the text of the report. You can read chapter and verse of this action which is being challenged by the EFF.

In a brief filed on [in March] (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.