The New York Times is accusing the Obama administration of abandoning the president’s promise to open up the federal government to new transparency, in the wake of a court decision allowing it to keep some legal memos secret.
Last Friday, a federal appeals court ruled that the Justice Department can continue to keep secret a memo establishing the legal basis for collecting records about Americans’ calls from phone companies without a warrant. The FBI has said that it stopped the collection in 2006.
The opinion from the U.S. Court of Appeals for the D.C. Circuit, considered the nation’s second highest court, was a blow to transparency advocates that had fought for the disclosure.
“Withholding the opinions of the Office of Legal Counsel, which provides legal advice to the president and executive agencies, is deeply troubling. The office’s advice often serves as the final word on what the executive branch may legally do, and those who follow that advice are virtually assured that they will not face prosecution.”
The court ruled in a unanimous decision that the memo does not need to be disclosed because it is part of an “advisory opinion” that “merely examines policy options available to the FBI,” not working law. The government should be allowed to keep those types of records secret, the court said, to prevent federal officials from working in a “fishbowl.”
The Times editors said that that type of thinking could be dangerous.
“This rationale is largely a pretext for putting an ever-expanding shroud over almost any controversial, and potentially illegal, government action,” they wrote.