Senator Ron Wyden (D-OR) sits on the Senate Intelligence Committee, where he has special access to classified information about United States intelligence operations. As I’ve written about before, Senator Wyden has repeatedly used that special access to warn the American people about gaps between what intelligence officials say in public and what he knows they’re doing behind closed doors. Now he’s done it again—and as usual, when the Senator raises a red flag, it means we should all pay attention.

The latest Wyden Warning comes in the form of a public letter to the Attorney General and an amicus brief in an ACLU Freedom of Information Act (FOIA) lawsuit. The ACLU is seeking access to an Office of Legal Counsel (OLC) memo written in 2003, by Bush administration official John Yoo. Although the government has refused to release the memo, we have good reason to believe it describes government surveillance relationships with telecoms and internet service providers. As Marcy Wheeler points out, Senator Wyden has not only warned the public about the existence of this memo, but has actively tried to get the Obama administration to withdraw it, thus far to no avail. 

ACLU attorney Eliza Swiren-Becker writes:

The government has withheld the OLC opinion on common commercial service agreements in its entirety and defended that secrecy in court. Last month, after the government filed its brief in our lawsuit, Sen. Wyden wrote a public letter to the attorney general noting that the government’s brief in our case contains a “key assertion” that is “inaccurate” and “central to the DOJ’s legal arguments.” He also attached a classified annex to the letter that discussed this inaccuracy in detail. Senator Wyden then submitted an amicus brief in support of our lawsuit, urging the court to review the classified annex to his public letter. (Five days later, the ACLU filed its brief challenging the government’s suppression of the opinion.)

It is virtually unprecedented for a sitting senator to submit an amicus brief calling out the government for misleading the court. Sen. Wyden’s willingness to do so shows just how important it is to release this OLC opinion. Given his track record and his repeated warnings, the court — and the public — should take notice. The OLC opinion is probably far more meaningful to the public and to our privacy than we could possibly guess. 

When Senator Wyden warns us about secret law, we should listen. If we don’t understand how the government interprets its own authority to monitor commercial communications networks, we don’t have enough information to properly debate important public policy matters like encryption. The FBI keeps telling the public it’s going dark, but all signs suggest the opposite is true. What is the government hiding in this 13 year old legal memo?