Govt Will Not Declassify 2001 Opinion on Surveillance

08.26.11 | 1 min read | Text by Steven Aftergood

The Department of Justice refused this month to declassify a 2001 legal Office of Legal Counsel opinion by John C. Yoo concerning the legality of the Bush Administration’s warrantless surveillance program.

The redacted information in the OLC opinion “is classified, covered by non-disclosure provisions contained in other federal statutes, and is protected by the deliberative process privilege,” wrote Paul P. Colborn, Special Counsel at OLC.

The document had been requested by researcher Matthew M. Aid, who writes on NSA and surveillance policy.

Eight partial sentences from the 21 page opinion were released, including a previously declassified assertion that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid such a reading.”

That claim alone has drawn criticism from some members of Congress.

“I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn’t say that,” Sen. Sheldon Whitehouse told the Washington Post in a May 23, 2008 story. “Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day.”

“The 2001 statement addressing FISA does not reflect the current analysis of the department,” wrote Justice official Brian A. Benczkowski, quoted in the Post.