A.C.L.U. Asks Supreme Court to Let It Seek Secret Surveillance Court Rulings


His later legal work has expanded beyond traditional Republican Party positions, including challenging California’s former ban on same-sex marriage and representing the young undocumented immigrants known as Dreamers. Still, given his history in surveillance matters, his participation in this case is striking.

In 1984, as head of the Office of Legal Counsel, Mr. Olson signed what has been described as a landmark memo blessing National Security Agency surveillance techniques of that era that Congress did not cover in FISA — like tapping transoceanic cables from the international seabed, and intercepting satellite transmissions — as lawful even when they swept in Americans’ communications without a warrant.

The government is still keeping that memo secret. In 2018, a federal judge rejected a Freedom of Information Act lawsuit filed by The New York Times seeking its public disclosure, deferring to the executive branch’s decision that it must remain entirely classified. (In a separate case, the A.C.L.U. has also sought its disclosure without success.)

In an interview, Mr. Olson chuckled when asked about the 1984 memo. He recalled visiting the National Security Agency more than two decades later, as a member of the Privacy and Civil Liberties Oversight Board, and said agency officials came up to him and said, “oh the Olson Opinion, the Olson Opinion. Years later, and they were still talking about the Olson Opinion — but not very publicly.”

Mr. Bush appointed Mr. Olson to that board after he had served as solicitor general in the president’s first term, making him one of its most important legal officers in the post-Sept. 11 period. (Mr. Olson’s wife was among the victims of those attacks, as a passenger on the plane that Qaeda hijackers crashed into the Pentagon.)

In 2002, he appeared on behalf of the government before the FISA review court, a three-judge panel of appellate judges, in the first case in which it was convened to hear an appeal of a surveillance court decision. He persuaded the panel to overturn a surveillance court ruling that had struck down an expansion of government power in part of the USA Patriot Act.

In the interview, Mr. Olson said he stands by his legal work on surveillance legal policy in 1984 and 2002 — even though this time around, he stands in a different corner.

“Judges can’t render opinions that are completely insulated from public review,” Mr. Olson said, adding: “I think we are on sound footing.”



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