Court: Legal Opinion on FBI Surveillance Can Remain Secret

Justice Dept Opinions Might Change If They Had to Be Made Public

The DC Circuit Court of Appeals has rejected a petition urging the release of Justice Department’s Office of Legal Counsel (OLC) memo which granted the FBI power to “informally” gather Americans’ telephone records. The memo was not classified but has been withheld by the Justice Department, which insists it is exempt from the Freedom of Information Act (FOIA).

The Electronic Frontiers Foundation (EFF) has sought the release of the memo for years, and this was the first time a court even agreed to hear the case.

The judge agreed with the Justice Department’s argument that such legal opinions can be withheld from the public on the grounds that Justice Department lawyers would be reluctant to endorse certain positions if they had to be made public. The unspoken corollary to this is that Justice Department positions are so reprehensible as to be virtually indefensible to the public, and instead of trying and failing to defend them, they’re simply going to keep their opinions to themselves, despite those opinions being used to justify policy.

EFF officials criticized the decision, saying it meant the administration could effectively “reinterpret” federal laws at will without telling anybody. The Justice Department said it was “pleased” with the finding.

Author: Jason Ditz

Jason Ditz is senior editor of