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Judge to Examine Warrantless Spying Docs in Chambers

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

The government's legal rationales for warrantless spying on Americans must be given to a federal judge to examine in his chambers in order to decide whether parts of the documents should be released under government sunshine requests, a federal judge ruled last Friday.

The ruling(.pdf) by Washington D.C. Circuit Court judge Henry Kennedy, Jr. marks a partial win for the Electronic Privacy Information Center and the ACLU which sued for the documents' release under the Freedom of Information Act. Kennedy will decide what portions of the ten documents at issue will be released to the groups.

The government has refused to release the documents, which were mostly created by the Justice Department's Office of Legal Counsel. That office is responsible for deciding what policies are legal for government employees to follow. John Yoo, then a little known conservative lawyer, worked in that office and crafted opinions that legalized the warrantless surveillance program and the government's torture policy.

Though the original documents haven't been seen, the Bush administration says it was justified in spying on Americans' communications without court order because of Congress's passage of the Authorization to Use Military Force against Al Qaeda and because of the president's inherent wartime powers.

Those documents play a key role in the dramatic showdown between the Justice Department and the Oval Office in March 2004, where Deputy Attorney General James Comey led a dramatic revolt against portions of the program and its legal foundations and nearly resigned, along with then- Attorney General John Ashcroft and FBI director Robert Meuller.

The government claimed a number of reasons why portions of the documents could not be released -- that doing so would endanger national security, that the legal opinions amounted to legal advice to the president and that the opinions -- even final ones -- were part of the deliberative process and thus exempt from disclosure.

Judge Kennedy upheld the government's use of these exemptions.

"[A]bsent contrary evidence or bad faith ? neither of which exists in this case ? this court will not second-guess DOJ?s determination that release of the classified information in these documents would harm national security," Kennedy wrote.

But he did rule rule that in the case of 10 documents, the government hadn't adequately explained why it couldn't release the non-classified or exempt material.

The Justice Department has until November 17 to submit the 10 documents to Kennedy for review.

Photo: Flickr/ Andy Fitzsimon

Full post as published by Threat Level on November 06, 2008 (boomark / email).