Secrecy & Leaks

DOJ Releases Redacted Version of 2004 Surveillance Opinion

By Jack Goldsmith
Friday, March 18, 2011, 11:53 PM

This afternoon, in connection with FOIA litigation by the ACLU, the Department of Justice released this May 2004 memorandum that I wrote as head of the Office of Legal Counsel about a certain surveillance program.  (It also released this memorandum.)  To protect classified information, the released version of the memorandum I wrote is heavily redacted.  It discloses only portions of a legal analysis, and very little of the context in which the legal principles were applied.  (The unclassified Inspector General Report on this topic provides more context.)  To cite but one fact that remains unexplained, the memorandum states that “[t]he scope of the authorization for electronic surveillance . . . has changed over time [and the changes] are most easily understood as being divided into two phases: (i) those that occurred before March 2004, and (ii) those that occurred in March [] 2004,” two months before the memorandum was completed.  An understanding of my views and actions requires reading the memorandum and other classified documents in their entirely, which is not possible today.  I continue to believe that the memorandum provides a sound analysis of a difficult set of legal issues encountered in a difficult context.