Saturday, November 1, 2008

Court Orders DOJ to Produce OLC Memos on Warrantless Wiretapping

D.C. District Judge Henry H. Kennedy, Jr., on Friday ordered the Justice Department to produce OLC memos providing the legal justification for the administration's warrantless wiretapping program for in camera review in consolidated FOIA cases against the Department.  ABC News reports here; see my recent related post here.

We already have a glimpse of the Department's legal analysis in support of the program.  (The Electronic Privacy Information Center (or "EPIC")--the plaintiff in one of the cases--collects the legal documents here; see especially the FOIA documents on EPIC's site.  The ACLU--the plaintiff in the other case--collects documents here.)  And it's familiar.  For example, an unsigned January 19, 2006, DOJ memo titled Legal Authorities Supporting the Activities of the National Security Agency Described by the President (under "Documents released by Justice Department Office of Legal Counsel, part 2" on the EPIC site) states

The NSA activities are supported by the President's well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. . . .

In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute [the AUMF] has confirmed and supplemented the President's recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland. . . .

I'll track this and let you know if and when the OLC memos become available and whether they say anything new.

SDS

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