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Justice Department releases two redacted memoranda relating to intelligence surveillance

Over at Lawfare, former Assistant Attorney General for the Office of Legal Counsel, Jack Goldsmith, reports:

This afternoon, in connection with FOIA litigation by the ACLU, the Department of Justice released this May 2004 memorandum that I wrote as head of the Office of Legal Counsel about a certain surveillance program.  (It also released this memorandum.[written by John Yoo])  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.

I think it makes good sense to take Goldsmith’s comments seriously. The Yoo memo is so heavily redacted– less than 8 sentences of a 7 page memo were not edited out– that it tells us nothing.

(HT: Bobby Chesney)

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.