DOJ Must Give Judge Legal Memos on Terrorist Wiretapping

The U.S. Department of Justice must hand over the legal memos it provided to the Bush administration to justify its program of electronic monitoring of terrorism suspects without a warrant, a federal judge in Washington, D.C., has ruled.

U.S. District Judge Henry H. Kennedy partially granted the Electronic Privacy Information Center's motion for in camera review, ordering the Justice Department's Office of Legal Counsel to produce 10 of 30 requested memoranda relating to the government's "terrorism surveillance program."

The judge will review the documents in private to determine whether the release of any of the memos will jeopardize public safety or violate attorney-client privilege.

EPIC and the American Civil Liberties Union sued the Justice Department in 2006 in the U.S. District Court for the District of Columbia after the Bush administration publicly acknowledged that it had conducted warrantless surveillance of suspected terrorists' Internet activity, e-mail, text messages and telephone calls.

The groups sought, under the Freedom of Information Act, production of the Office of Legal Counsel's legal opinions justifying the program.

The government withheld the requested documents on the grounds of national security and attorney-client privilege.

The OLC provides legal advice to the executive branch of the U.S. government, including the president, vice president and cabinet members.

The plaintiffs then asked Judge Kennedy to compel the government to produce the memoranda for in camera review, claiming that the Justice Department was not justified in withholding them.

The government countered with a motion for summary judgment dismissal of the entire suit.

Judge Kennedy ruled that of 30 documents identified in declarations submitted by the OLC, 10 of them should be submitted for review.

He said the government provided insufficient justification for continuing to withhold the documents.

The judge will review the memos to determine whether, as the Department of Justice claims, they contain information that would cause "exceptionally grave harm" to national security if released.

"DOJ has now had two opportunities to provide this court with sufficiently detailed affidavits to describe why the documents at issue are subject to the claimed exemptions and why many documents must be withheld in full," Judge Kennedy wrote. "DOJ's declarations are still lacking with respect to some of the withheld documents."

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EPIC is represented by in-house counsel Marc Rotenberg in Washington.The ACLU is represented by in-house counsel Ann Beeson in New York.The government is represented by Caroline Lewis Wolverton and Rupa Bhattacharyya in Washington.