The following editorial appeared in the New York Times:
When President Barack Obama took office in 2009, he promised an unprecedented level of openness in government. In a memo issued the day after his inauguration, he wrote, The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.
In the latest reminder that the Obama administration has failed to live up to that promise, the Justice Department last week won its fight to keep secret a memo that outlines the supposed legal authority for the FBI to collect Americans telephone and financial records without a subpoena or court order.
The memo, issued in 2010 by the departments Office of Legal Counsel, approved of the bureaus use of what are known as exigent letters to obtain phone records without any legal process, and in the absence of any emergency. From 2003 to 2006, the bureau used these letters to obtain phone records for more than 3,500 accounts.
Last Friday, a unanimous panel of the Court of Appeals for the District of Columbia Circuit ruled that the memo could be kept secret from the public because it was the product of internal agency deliberations and had not been formally adopted as department policy. (The FBI has said it no longer uses exigent letters.)
Withholding the opinions of the Office of Legal Counsel, which provides legal advice to the president and executive agencies, is deeply troubling. The offices advice often serves as the final word on what the executive branch may legally do, and those who follow that advice are virtually assured they will not face prosecution.
During the Bush administration, the opinions of the office gave legal cover to officials who wanted to torture prisoners for terror-related intelligence and approved the warrantless wiretapping program that operated for years before being exposed by The New York Times.
Many other opinions remain hidden under the specious claim that they are only working drafts, not adopted policies, and that if officials must worry about operating in a fishbowl, they will avoid seeking legal advice altogether. This rationale is largely a pretext for putting an ever-expanding shroud over almost any controversial, and potentially illegal, government action.
In 2009, Attorney General Eric Holder said, an agency should not withhold information simply because it may do so legally. Those were encouraging words, but Holders Justice Department fought the release of the memo. If the administration continues to resist more transparency, Congress can amend the open-records law to require greater disclosure of the offices opinions.
Edward Snowdens unauthorized disclosures of secret mass surveillance programs have forever changed the public discussion about the relationship between national security and the protection of privacy and civil liberties. That debate is meaningful only if it is open. The public should not be left in the dark about the legal justifications for the most significant actions of its government.
The New York Times