WASHINGTON - November 1, 2008 - In an opinion issued Friday in a lawsuit filed by the National Security Archive, the American Civil Liberties Union and the Electronic Privacy Information Center, the U.S. District Court for the District of Columbia ordered the Department of Justice to submit to the court for review several of the DOJ's legal opinions authorizing the Bush regime to conduct domestic surveillance without prior approval from a secret court.

U.S. District Judge Henry Kennedy Jr. said in a 27-page opinion that the "[Department of Justice] has now had two opportunities to provide this court with sufficiently detailed affidavits to describe why the documents at issue are subject to the claimed exemptions, and why many documents must be withheld in full."

The court said the Justice Department's explanations for withholding the documents were "insufficient," and ordered the records to be turned over to the court to determine whether it can be released to the plaintiffs under the Freedom of Information Act.

President George W. Bush authorized the National Security Agency to conduct domestic surveillance between people in the U.S. and suspected terrorists abroad without obtaining court warrants after September 11, 2001. The White House said the process for obtaining warrants from a secret court to spy on Americans was too "cumbersome" and that Bush had inherent authority under the Constitution to order warrantless wiretaps.

The civil liberties groups sued the Bush regime in 2005 after The New York Times disclosed the wiretapping.

Last year, after the program was challenged in court, Bush placed it under the supervision of the Foreign Intelligence Surveillance Court, which was established in 1978 after the domestic spying scandals of the Nixon era.

The lawsuit seeks the release of [Justice Department] legal opinions "regarding the former policy of the Bush regime to conduct, under certain circumstances, surveillance of domestic communications without the prior authorization of the Foreign Intelligence Surveillance Court," Kennedy wrote. "DOJ previously moved for summary judgment and this court issued a Memorandum Opinion and Order on September 5, 2007 that granted in part and denied in part DOJ’s motion."

Eighteen of the thirty documents have been withheld by the Justice Department’s Office of Legal Counsel. The remaining twelve documents have been withheld by the FBI. The 18 documents withheld by OLC fall into one of two categories: documents related to Bush's reauthorization of the Terrorist Surveillance Program and documents related to the DOJ's Office of Legal Counsel legal opinions related to the legality of the program.

The FBI documents withheld contain information about how information derived from domestic surveillance "has helped in the FBI’s terrorist investigations."

"These documents fall into two categories: (1) internal memoranda from the Assistant Director of the Counterterrorism Division to the FBI Director, and (2) memoranda concerning the use of [the Terrorist Surveillance Program] in counterterrorism investigations," Kennedy's order says.

One of the legal opinions withheld is a “one-page memorandum, dated August 9, 2004, from the Acting Assistant Attorney General for OLC to the Deputy Attorney General, entitled ‘Proposed Memorandum,’ which contains OLC’s advice concerning a decision to be made by the Deputy Attorney General regarding an intelligence collection activity.”

Another document labeled "top secret" is a "a one-page memorandum, dated October 20, 2001, from the Attorney General to the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized."

The DOJ "contends that the documents at issue are properly withheld... and that most of the withheld documents contain classified information" and are protected under attorney-client privilege because the DOJ's client, the president, expected that.

But the court said, "Just because the documents at issue contain classified information does not mean the documents are protected by the attorney-client privilege."

“The attorney-client privilege protects confidential information that involves or is about that client,” Kennedy wrote. “The DOJ’s declarations do not indicate what agency or executive branch entity is the client for purposes of the attorney-client privilege.

Moreover, the DOJ’s declarations “do not specify what entity transmitted the confidential information at issue to the attorneys" and without first reviewing the documents being withheld "the court cannot conclude that the attorney-client privilege applies."

"This classified information may have been provided by an agency other than the agency or executive branch entity/official that is asserting the attorney-client privilege," the opinion says. "The declarations indicate that the documents at issue contain legal advice. Simply because the documents contain legal advice does not necessarily mean that the attorney-client privilege applies to the documents, however."

The National Security Archive claims the DOJ’s justifications for withholding the documents are "either improper or insufficiently justified and seeks an order for in camera review of the documents so that the court is able to verify whether DOJ has appropriately withheld the information in question."