Privacy SOS

Attorney-client privilege denied to us, used by Feds to keep the law secret

How do you spell chutzpah? I submit an alternate spelling: O-B-A-M-A D-O-J.

How the Obama administration interprets the phrase “government transparency,” in three acts.

Act One: Secret Law

The Obama administration is trying to keep secret a 2003 Office of Legal Counsel memo outlining how federal intelligence agencies interpret “commercial services agreements” between telecoms and their customers. The memo, which the ACLU seeks in a FOIA lawsuit, likely outlines the government’s legal position on how intelligence agencies can access information held by telecommunications companies. Senator Ron Wyden, who from his position on the Senate Intelligence Committee has routinely warned Americans of unconstitutional intelligence activities, has said the government’s “opinion is inconsistent with the public’s understanding of the law, and should be withdrawn.”

Wyden has also publicly stated that the DOJ misled a federal court during its legal fight to keep the memo secret. In a March 2016 letter, Wyden wrote that a DOJ memorandum of law filed in the case contains a “key assertion” that is false. “This assertion appears to be central to the DOJ’s legal arguments,” Wyden wrote.

Now the DOJ has fired back at Wyden, asserting in a brief in the ACLU lawsuit that the Senator’s claims about this “key assertion” were “wholly erroneous” and “based on a fundamental misunderstanding of the law.” The Justice Department claims the administration can keep the legal memo secret because it is not “working law,” but rather confidential legal advice. According to the DOJ, even though an agency may rely on an Office of Legal Counsel memo “by acting in a manner that is consistent with the advice,” the memo doesn’t necessarily “establish agency policy,” meaning it’s not “working law”—which is subject to public disclosure—but instead confidential legal advice.

(As Wyden noted, the DOJ “isn’t denying that this opinion is inconsistent with the public’s understanding of the law”; instead, it’s arguing that the legal memo at issue doesn’t constitute law.)

To repeat: The government is arguing that even if agencies “rely” on an OLC memo and act “in a manner consistent” with its advice, it isn’t law. Instead, it’s private legal advice, which just so happens to be something the government can keep secret from the public.

Act Two: Limitless Surveillance

In April 2016, the Office of the Director of National Intelligence (ODNI) released parts of a November 2015 Foreign Intelligence Surveillance Court (FISC) opinion about how the FBI, NSA, and CIA use information collected pursuant to Section 702 of the FISA Amendments Act. (The FISA Amendments Act, signed into law in 2008, put congress’ stamp of approval on the Bush administration’s warrantless wiretapping program.) Section 702 of that statute allows the intelligence agencies to warrantlessly wiretap Americans’ international communications, as long as Americans or people within the United States are not “targeted.” Part of that statute requires that the Attorney General and ODNI prepare annual reports, called “certifications,” to be reviewed by FISC judges. These certifications include information about how, why, and under what circumstances intelligence agencies “minimize” information about non-targets or US persons caught up in its dragnets.

The recently released November 2015 FISC opinion describes some of these minimization procedures in detail. Among them are procedures related to the capture, dissemination, and use of attorney-client privileged communications. The opinion reveals that the FBI can disseminate attorney-client privileged communications as long as the FBI’s lawyers approve it. The rules require the FBI to “advise recipients that the dissemination contains information subject to attorney-client privilege, that the information is being disseminated ‘solely for intelligence or lead purposes,’ and that it may not be further disseminated or used in any trial, hearing, or other proceeding without the approval of the AG or the Assistant AG for National Security.”

In other words: The US government allows itself to warrantlessly wiretap our international communications and even use our attorney-client privileged communications for intelligence purposes, as long as it doesn’t disclose to criminal defendants or courts that it has done so.

Act Three: Upside Down World

The US government refuses to disclose a legal memo that likely describes how intelligence agencies spy on our communications, claiming that the memo isn’t “working law” but instead constitutes “private” legal advice. Secret law is thereby justified by attorney-client privilege. In this case, the attorney and the client are one in the same: the executive branch.

At the same time, the government gives itself the power to warrantlessly wiretap, retain, disseminate, and use for intelligence purposes our attorney-client privileged communications—so long as the fact of agencies doing so never becomes public. Surveillance of attorney-client privileged communications is justified, as long as it remains secret.

Secret law, secret surveillance. Attorney-client privilege for government lawyers advising government agencies about government policy. No attorney-client privilege for ordinary people, who will likely never learn that the FBI or NSA has warrantlessly obtained their confidential communications.

Only in an upside down world could this administration choose this path, having called itself the “most transparent administration” in history.

© 2018 ACLU of Massachusetts.