Senator Wyden Warns That The Justice Department Is Lying To The Courts; Also Still Worried About Secret Law

Legal Issues

from the keep-plugging-at-this dept

We’ve been noting for years: when Senator Ron Wyden says that (1) there’s a secret interpretation of a law that is at odds with the public’s understanding of it, or (2) that government officials are lying, you should pay attention. It may take a while, but it always comes out eventually that he’s absolutely correct. For at least five years now, we’ve been posting semi-regular updates to Wyden calling out the government for its secret interpretations of the law, and some of that was proven entirely accurate thanks to the Snowden revelations concerning how the PATRIOT Act and the FISA Amendments Act had been interpreted. However, since the Snowden revelations, Wyden has made it clear that that’s not all. In particular, he’s spoken about a Justice Department legal opinion, written by John Yoo, that Wyden insists is important and should be revealed.

A year ago, we wrote about Wyden asking then Attorney General Eric Holder to release the document, which is currently the subject of a FOIA lawsuit filed by the ACLU. He’s now asking yet again for it, in a new letter to Attorney General Loretta Lynch:

As you may be aware, I have previously written to the Department of Justice regarding a particular secret legal opinion from the DOJ’s Office of Legal Counsel. which has now been the subject of a recent suit under the Freedom of information Act. This opinion remains classified, but it pertains to common commercial service agreements. The DOJ’s motion to dismiss the now-pending FOIA case also noted that this opinion was signed by Deputy Assistant Attorney General John Yen and dated March 30, 2003.

As I have noted in previous correspondence with the DOJ, I believe that this opinion is inconsistent with the public’s understanding of the law, and should be withdrawn. I also believe that this opinion should be declassified and released to the public, so that anyone who is a party to one of these agreements can consider whether their agreement should be revised or modified. For these reasons, I encourage you to direct DOJ officials to comply with the pending FOIA request.

As we noted in our previous coverage, the contents of this memo almost certainly impact the various cybersecurity issues, in particular the Cybersecurity law (a variation on CISA) that passed and became law late last year.

But, the much bigger news comes in the following paragraph, in which Senator Wyden says that the DOJ is lying to the court in trying to kill the ACLU’s FOIA request:

Additionally, I am greatly concerned that the DOJ’s March 7, 2016, memorandum of law contains a key assertion which is inaccurate. This assertion appears to be central to the DOJ’s legal arguments, and I would urge you to take action to ensure that this error is correct.

I am enclosing a classified attachment which discusses this inaccurate assertion in more detail.

You can see the DOJ’s memorandum of law here (or embedded below) to see if you can sniff out the “key assertion which is inaccurate.” Marcy Wheeler, who is damn good at this stuff, has some suggestions and thoughts, though each has some caveats. Either way, just the fact that this is a guessing game is ridiculous. The fact that the DOJ appears to be purposely misleading the court is a travesty — but one that has become all too common these days.

In the meantime, are there any legal opinions that John Yoo authored that didn’t turn out to be absolutely horrific? He wrote the legal opinion that authorized torture. And just a few weeks ago, another one of his ridiculous legal opinions (from 2002) was released, revealing his absolutely ridiculous legal rationale for warrantless wiretapping. Yoo seemed to specialize in trying to paper over basically anything illegal that the government wanted to do.

Filed Under: eric holder, foia, john yoo, loretta lynch, olc, ron wyden, secret interpretation, secret law
Companies: aclu