The Obama administration’s Justice Department argued this week that a Senate Democrat is demonstrating a “fundamental misunderstanding of the law” by pushing to declassify a 13-year-old guidance document on surveillance.
The dispute involves a 2003 memorandum issued by the Justice Department’s Office of Legal Counsel pertaining to surveillance and “commercial service agreements.” The Justice Department defended its decision to keep the memo secret after Sen. Ron Wyden, D-Ore., filed a brief in support of a lawsuit seeking to make the document public.
Wyden argued that the document represents “working law,” which is subject to release under the Freedom of Information Act. The agency maintains it is only a legal opinion upon which the law is predicated, which would be exempt from FOIA.
“Sen. Wyden’s claim that the government’s motion papers in this case contained a ‘key assertion’ that is ‘inaccurate’ is wholly erroneous and based on a fundamental misunderstanding of the law,” wrote Preet Bharara, the U.S. attorney for the Southern District of New York.
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“The mere fact that an agency may have ‘relied’ on legal advice in deciding whether or not to take a contemplated policy action does not transform the advice into ‘working law,'” Bharara added.
“I believe that this opinion is inconsistent with the public’s understanding of the law,” Wyden wrote in a letter addressed to the attorney general in March. “I also believe that this opinion should be declassified and released to the public, so that anyone who is a party to one of these agreements can consider whether their agreement should be revised or modified.”
Wyden has been a vocal advocate of the suit to declassify the decision, which was filed by the American Civil Liberties Union under the Freedom of Information Act.
Critics believe the memorandum, issued by Deputy Assistant Attorney General John Yoo in the Bush administration, is related to surveillance of telecommunication providers and their customers.
