* newly released OLC memoranda regarding NSA surveillance
In response to FOIA litigation brought by the ACLU, the government has released a pair of heavily-redacted memoranda from OLC relating to warrantless surveillance. One is from John Yoo, the other from Jack Goldsmith. Both are available here. Please note the following observations, posted by Jack this evening at www.lawfareblog.com in response to the release:
…. 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.
By Robert M. Chesney
Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.
View all of Robert M. Chesney's posts.
