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Federal appeals court rules DOJ memo can remain classified

The US Court of Appeals for the District of Columbia Circuit [official website] ruled [text, PDF] on Friday that the executive branch may continue to withhold a Department of Justice (DOJ) [official website] memo that established the legal basis for telephone companies to give customers' calling records to the government without a subpoena or court order. The classified memo was issued by the Office of Legal Counsel (OLC) [official website] in January 2010. The FBI [official website] denies [NYT report] that it ever employed the legal theory in the classified memo and claimed that it never planned to. The appeals court found that the memo was an "advisory opinion, recommendation and deliberation comprising part of a process by which government decisions and policies are formulated." The court found, therefore, that the memo was covered by the deliberative process privilege making it exempt from disclosure under the Freedom of Information Act [text]. Legal specialists have found the ruling to be consistent with how other federal courts have handled OLC memos recently.

The revelations surrounding NSA surveillance programs have sparked worldwide debate and controversy. In December the US District Court for the Southern District of New York [official website] ruled [text, PDF] that the National Security Agency's (NSA) [official website] PRISM [JURIST backgrounder] program is legal. Also in December, the US released documents [JURIST report] concerning the origins of NSA surveillance. In September the Foreign Intelligence Surveillance Court released [JURIST report] a previously classified opinion [text, PDF] explaining why a NSA program to keep records of Americans' phone calls is constitutional. Also in September the ACLU urged the Obama administration [JURIST report] to curb the FBI's surveillance powers. In August the Council of Europe [official website] expressed concern [JURIST report] over the UK reaction to the exposure of the US surveillance program. Lawmakers have also called for a criminal investigation into the activities of Edward Snowden, who came forward in early June as the whistleblower in the NSA surveillance scandal [JURIST podcast]. JURIST Guest Columnist Christina Wells argues that the broad provisions of the Espionage Act [text], under which Snowden is charged, raise significant First Amendment concerns [JURIST op-ed].

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