(CN) - The Supreme Court must decide whether the government should produce the secret legal memo that authorizes warrantless phone-record collection by the FBI, the Electronic Frontier Foundation said Tuesday.
"Warrantless domestic surveillance, torture, the targeted killing of American citizens abroad - these are among the most controversial government practices of the past fifteen years," according to the EFF's petition for a writ of certiorari. "And each found its legal authorization in a formal written opinion of the Office of Legal Counsel."
The D.C. Circuit refused
to order the memo's release under the Freedom of Information Act earlier this year, finding that the OLC "cannot speak authoritatively on the FBI's policy." Even if the OLC opinion describes "the legal parameters of what the FBI is permitted to do, it does not state or determine the FBI's policy," the three-judge appellate panel said.
Given the lack of references to the opinion in public documents, the court also found that the FBI had not expressly adopted the OLC opinion.
"But the panel's determination conflates Sears'
requirement of 'express' adoption with 'public' adoption: a document may be expressly adopted within an agency without that adoption having publicly observable traits," the EFF said Tuesday, citing the 1975 decision NLRB v. Sears, Roebuck & Co
. "Indeed, FOIA's purpose of eliminating 'secret law' is ill-served by a rule, like the one articulated below, that permits agencies to circumvent the act's disclosure requirements, simply by avoiding public reference to a document - especially when that document governs agency conduct internally."
The EFF claimed that the Department of Justice interpreted the D.C. Circuit's January opinion to "authorize a near-categorical exemption from FOIA for OLC's formal opinions," and at least one federal judge has upheld this categorical approach.
"Indeed, a recent district court decision adopted precisely such a sweeping approach: in a case involving ten OLC opinions authorizing various government surveillance programs, the court determined there was 'no principled way to distinguish the OLC opinion' at issue there from the Opinion at issue in this case," the EFF said.
The digital rights nonprofit urged the Supreme Court to hear its case, and give lower courts guidance on how to determine what constitutes deliberative-process privilege to protect the public right to know how the executive branch interprets its authority and limitations.
"As Senator Dianne Feinstein recently noted, access to OLC opinions 'isn't just idle curiosity. It's really to understand the direction and rules under which certain programs operate. ... These opinions are actually indispensible to effective oversight,'" the brief states. Feinstein made those remarks at a nomination hearing.
"OLC opinions have formed the legal basis for some incredibly controversial government actions," EFF Staff Attorney Mark Rumold said in a statement. "It can't be left to the executive branch's discretion to release these critically important opinions. We hope the Supreme Court will take the opportunity to clarify that this type of secret law has no place in a democratic society."