吃瓜大本营

Far too often, when the ACLU fights for the disclosure of a government record under the Freedom of Information Act, we have a strong feeling that the government isn鈥檛 giving us or the court the whole truth. And sometimes, it appears that the government is even being misleading in the details it chooses to leave out. But rarely does a U.S. senator with access to classified information confirm our intuition.

Last year, we filed a FOIA lawsuit for an opinion authored by the Justice Department鈥檚 Office of Legal Counsel. The contents of the opinion are mostly a mystery, but we do know that John Yoo wrote the opinion in May 2003, that it relates to the Bush administration鈥檚 post-9/11 warrantless wiretapping program, that it is directly relevant to the Cybersecurity Act of 2015 (a bill we opposed and called Patriot Act 2.0), and that it pertains to 鈥渃ommon commercial service agreements.鈥�

While these are just a few pieces of the puzzle, they are enough to speculate that the opinion offers a legal interpretation that bears on government relationships with the private sector 鈥� likely telecom and internet companies 鈥� that enable information sharing and surveillance.

That speculation seems appropriate given how we learned of the opinion in the first place. Sen. Ron Wyden (D-Ore.) has repeatedly warned that the OLC鈥檚 opinion on common commercial service agreements is critical to understanding the ongoing cybersecurity debate and contains a legal interpretation that is 鈥渋nconsistent with the public鈥檚 understanding of the law.鈥� Sen. Wyden has a history of alerting the public to the government鈥檚 reliance on secret law. the senator warned that the executive branch鈥檚 secret legal interpretation would shock the public, it turned out he was referring to the NSA鈥檚 unlawful bulk collection of call records under Section 215 of the Patriot Act. The facts underlying his warnings roared into public consciousness with publicized in June 2013.

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 to the attorney general noting that the government鈥檚 brief in our case contains a 鈥渒ey assertion鈥� that is 鈥渋naccurate鈥� and 鈥渃entral to the DOJ鈥檚 legal arguments.鈥� 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鈥檚 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鈥檚 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 鈥� and the public 鈥� should take notice. The OLC opinion is probably far more meaningful to the public and to our privacy than we could possibly guess.