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Judge wants to see legal memos in NSA wiretapping case

A federal judge has ordered the Justice Dept. to turn over documents relating to the NSA's warrantless wiretapping program. ACLU and EFF had sought the legal opinions under an FOIA request, while Justice merely submitted summaries, claiming attorney-client privilege. Judge Henry Kennedy said the summaries the department provided were inadequate for him to determine whether the memos were truly privileged.
Written by Richard Koman, Contributor

A federal judge has ordered the Justice Dept. to turn over documents relating to the NSA's warrantless wiretapping program, Jurist reports.

In their lawsuit against the government, the ACLU and EFF had requested memoranda authored by the White House Office of Legal Counsel. The Justice Dept. refused to hand them over, citing attorney-client privilege.

In his order, Judge Henry Kennedy of the District Court for the District of Columbia said the summaries the department provided were inadequate for him to determine whether the memos were truly privileged:

Simply because the documents contain legal advice does not necessarily mean that the attorney-client privilege applies to the documents, however. In short, the declarations provided by DOJ are too vague to enable this court to determine whether the attorney-client privilege applies. The court has no doubt that, to the extent DOJ became privy to classified information, there was an expectation that DOJ was to keep this information confidential. The attorney-client privilege is not necessarily the means for protecting this information. Without more information, the court cannot conclude that the attorney-client privilege applies.

The judge will review the documents in private to make a determination regarding privilege and harm to national security. Justice hasn't indicated whether it will comply with the order.

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