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FOIA and the Question of Secret Law

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Friday, October 7, 2011 at 2:43 PM

Charlie Savage of the New York Times has filed this FOIA suit in an effort to acquire a classified report issued by DOJ and ODNI to Congress “pertaining to intelligence collection authorities” under section 215 of the USA PATRIOT Act (permitting the government to obtain from the FISC an order for the production of “any tangible things” upon a showing of “reasonable grounds” in relation to an international terrorism or counterintelligence investigation). The report appears to have sparked fierce objections from Senators Ron Wyden and Mark Udall, who have asserted in floor debate that the government has a troubling “secret” interpretation of the PATRIOT Act.  

The suit itself presents the question whether legal analysis, as distinct from details of the program itself, warrants protection under FOIA exemption 1.  The complain calls for release of at least a redacted version of the DOJ/ODNI report, if not the whole thing.  If successful, of course, this strategy could have significant implications across a range of settings involving internal government legal advice.

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