[JURIST] Judge Henry Kennedy of the US District Court for the District of Columbia [official website] on Friday ordered [order, PDF] the Department of Justice (DOJ) [official website] to release legal memoranda relating to the National Security Agency's warrantless domestic surveillance program [JURIST news archive]. The issue came before the court in a lawsuit filed by the American Civil Liberties Union, the Electronic Privacy Information Center, and the National Security Archive [advocacy websites], which sought the release of the documents under a Freedom of Information Act (FOIA) [text; DOJ materials] request. The DOJ had originally denied the request, arguing that the memoranda, authored by the White House Office of Legal Counsel [official website], were exempt from FOIA requests because they contained privileged information. Kennedy found that DOJ summaries of the information included in the memos were insufficient for him to determine whether they were exempt from disclosure:
Simply because the documents contain legal advice does not necessarily mean that the attorney-client privilege applies to the documents, however. In short, the declarations provided by DOJ are too vague to enable this court to determine whether the attorney-client privilege applies.Kennedy said that he would review the documents in private in order to determine whether their public release would violate the privilege or harm national security interests. The DOJ has not yet indicated whether it will comply with the order. AP has more. The New York Times has additional coverage.
The court has no doubt that, to the extent DOJ became privy to classified information, there was an expectation that DOJ was to keep this information confidential. The attorney-client privilege is not necessarily the means for protecting this information. Without more information, the court cannot conclude that the attorney-client privilege applies.
In December 2007, the Foreign Intelligence Surveillance Court (FISC) [official backgrounder] denied [opinion, PDF; JURIST report] an ACLU motion [PDF text; JURIST report] asking the court to "disclose recent legal opinions discussing the scope of the government's authority to engage in secret wiretapping of Americans." The ACLU's request sought, among other things, a recently disclosed FISC decision [JURIST report] restricting the government's monitoring of e-mail and telephone conversations of suspected terrorists in foreign countries.