Homeland Security

Secret 1984 FISA Memo to Remain Secret

Tim Ryan of Courthouse News Service reported on October 24, 2017:


A federal judge backed the government on its withholding of a 1984 memo that purportedly details the constitutionality of a National Security Agency surveillance program. Pulitzer Prize-winning New York Times correspondent Charlie Savage brought the underlying complaint in Washington after filing a Freedom of Information Act request with the Office of Legal Counsel in October 2016.

The request, which the office did not answer within statutory deadlines, sought a memo by former Assistant Attorney General Theodore Olson on the constitutionality of conducting surveillance not mentioned in the Foreign Intelligence Surveillance Act.

Though the Office of Legal Counsel later admitted to having found two responsive documents, it told the court that a law akin to attorney-client privilege exempted them from production.

U.S. District Judge Christopher Cooper agreed with this justification on Friday, comparing Olson’s memo advising the attorney general to an attorney at a law firm lending help to a colleague.

“This is a quintessential example of the sort of document that falls within the attorney-client privilege: advice from an attorney (the head of OLC) to his client (the attorney general and, subsequently, the NSA) concerning the legal aspects of the client’s contemplated actions and based on confidential information from the client concerning those contemplated actions,” the 13-page opinion states (parentheses in original).

Read the full Court House News article here. The full 13-page decision is embedded below.


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