National Security

DOJ: Wyden misunderstanding law in fight over secret cyber memo

The Justice Department and Sen. Ron Wyden (D-Ore.) are squaring off in an increasingly bitter legal battle over a 13-year-old legal opinion.

In a filing on Thursday, the Department of Justice (DOJ) claimed that Wyden made “wholly erroneous” claims to a federal court “based on a fundamental misunderstanding of the law.”

{mosads}Not only is the DOJ in the right, lawyers claimed in a new filing, but it is Wyden whose argument is misguided.

“The senator’s claim of inaccuracy is based not on any inaccurate or incomplete facts, but rather on a fundamental misunderstanding of the ‘working law’ doctrine,” claimed the U.S. attorney for the southern district of New York.

On Friday, Wyden struck back, claiming that the Obama administration was avoiding his central claim.

“The Justice Department isn’t denying that this opinion is inconsistent with the public’s understanding of the law — they are just arguing that they should be allowed to keep it secret,” he said in a statement.

The back-and-forth threatens to escalate into an uncomfortable clash between a senior Democratic senator and the Obama administration, in the final months of Obama’s time in office.

At issue is a classified 2003 Office of Legal Counsel (OLC) opinion, which Wyden has singlehandedly and repeatedly pushed the government to make public.

The opinion’s precise details remain unknown. But it discusses “commercial service agreements” and is believed to outline some legal thinking about cybersecurity law. Watchers speculate that the opinion discusses the terms of agreements between telecom companies and their consumers and the conditions under which the government can access people’s data.

In March, Wyden accused the DOJ of making a “key assertion which is inaccurate” as part of a legal fight over whether to release the 2003 opinion.

Wyden has suggested that its scope is far-reaching and that the content could be controversial.

“I believe that this opinion is inconsistent with the public’s understanding of the law, and should be withdrawn,” he wrote in a letter to the DOJ in March. In the same letter, he accused the department of relying on “inaccurate” claims to make its case.

Wyden has earned credit with privacy advocates by previously helping to shine a light on the National Security Agency’s sweeping collection of Americans’ phone records, so many are inclined to follow his tip.

The American Civil Liberties Union filed a lawsuit trying to obtain the opinion under the Freedom of Information Act (FOIA) last November.

For the court, the debate comes down to whether the document qualifies as “working law,” or whether it is instead merely a bit of private legal advice, which would be exempt from FOIA.

“The mere fact that an agency ‘relies’ on an OLC legal advice memorandum, by acting in a manner that is consistent with the advice … does not make it ‘working law,’” the DOJ asserted, noting that the opinion has not been formally adopted by a government agency. “OLC memoranda fundamentally lack the essential ingredient of ‘working law’: they do not establish agency policy.

“If every piece of legal advice that an agency relied on (or acted in a manner consistent with) transformed the advice into ‘working law,’ then it would become impossible for agencies to receive and rely on confidential legal advice.”

– Updated at 1:57 p.m.

Tags Department of Justice Freedom of Information Act Office of Legal Counsel Ron Wyden
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