The Cutline

New York Times sues the Obama administration over Patriot Act secrets

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President Bush at a meeting on the Patriot Act in the White House on Jan. 3, 2006. (AP/Ron Edmonds)

The New York Times has sued the Obama administration over the Justice Department's denial of a Freedom of Information Act request from the paper that sought an explanation of the federal government's interpretation of a part of the Patriot Act.

In May, two members of the Senate Intelligence Committee introduced an amendment to pending legislation that would extend some expiring provisions in the Patriot Act, which was signed into law in 2001. (President Barack Obama signed a four-year extension of the Patriot Act's key provisions on May 26.)

The amendment, proposed by Senators Ron Wyden and Mark Udall, would have require the Justice Department to publicly explain its interpretation of a surveillance law that was modified by the Patriot Act.

"I wish to deliver a warning this afternoon," Wyden said  on the Senate floor in May. "When the American people find out about how their government has secretly interpreted the Patriot Act, they are gang to be stunned and they are going to be angry."

Udall added, "Americans would be alarmed if they knew how this law is being carried out."

In the wake of their comments, the Times and Charlie Savage, a reporter in the paper's Washington bureau, filed an FOIA request in June demanding the release of a secret report--issued by attorney general Eric Holder and director of national intelligence James Clapper in February--that includes the government's position on the law.

The Justice Deptartment denied the request, claiming the report is classified. The Times appealed that decision in late August, and the Justice Department has yet to respond.

According to the suit, filed on October 5 in the U.S. Southern District Court in New York, the Times and several lawmakers are particularly interested in section 215 of the Patriot Act, which allows the FBI to seize "any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine activities." (The FBI only has to show "reasonable grounds" to obtain court orders, the suit adds.)

The Justice Department has claimed the entire report is classified, but the Times is wondering what happened to its black marker. "Even if parts of the Report are properly classified," the Times argues, "DOJ has an obligation to redact non-public portions of the Report and release those portions that are public."

According to University of Texas professor and national security law scholar Robert Chesney, if the government is forced to reveal its position on a law, it could have "significant" impact on future FOIA requests.

"The suit itself presents the question whether legal analysis, as distinct from details of the program itself, warrants protection under FOIA exemptions," Chesney wrote on Lawfareblog.com. "If successful, of course, this strategy could have significant implications across a range of settings involving internal government legal advice."

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[H/T: Techdirt]

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