The move is seemingly unprecedented, Julian Sanchez, a senior fellow at the CATO Institute who has followed Wyden's allusions over the years, told Fusion.


"I can't think of anything comparable in terms of a sitting lawmaker using his knowledge of classified documents to intervene in a case involving litigation, and claiming that the DOJ is not being truthful about what they are saying in court," said Sanchez.

Wyden has spoke out in the past using his knowledge of classified information to intervene, but never in the courts, said Sanchez.


"I think it's safe to say that he is going as far as he can reasonably go without breaching classification," he said.

Wyden argues that the classified opinion should be declassified.

Keith Chu, a spokesman for Sen. Wyden, told Fusion that similar letters requesting the opinion be made public were sent to former Attorney General Eric Holder. "The Senator believes that the opinion is relevant to the entire cybersecurity debate that has been going on over the last few years," said Chu.


In 2013, Wyden pressed outgoing Office of Legal Counsel head Caroline Krass on the opinion, how it is used, and why it is not withdrawn if it is not relied upon for legal guidance. Krass responded that it would be "extremely unusual" for the office to withdraw an opinion, but rather said that he should seek "assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion." For her part, she said she would not rely on the opinion for her new post as CIA general counsel.

Wyden's latest move against the DOJ in the courts is part of the Senator's ongoing battle against what he calls "secret laws" — where pieces of legislation are covertly interpreted in "ways that are different than the stated text of the bill," spokesman Chu said.


We don't know what's in the opinion. But clearly, something is going on here that is worth fighting over. Watch this space.

Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.