DOJ Still Trying To Hide The Fact It Flat Out Lied To The Supreme Court About Domestic Surveillance

from the because-terrorism dept

Last year, we noted that US Solicitor General Donald Verrilli had lied to the Supreme Court in Amnesty International’s lawsuit about warrantless wiretapping. If you don’t recall, Amnesty International had sued about the program, but the US government successfully got the case tossed by arguing that Amnesty International had no proof that their communications were tapped, and thus they had no standing to sue. The Supreme Court appeared troubled by the fact that no one could sue unless they somehow knew for a fact they were being spied upon, but eventually sided with the government, in large part because of one of Verrilli’s false statements.

Specifically, he claimed that others would have standing to sue, because if the government used the information obtained via such a warrantless wiretap (under Section 702 of the FISA Amendments Act) it would have to inform those who were being charged with a crime because of that information. It was only much later, when Dianne Feinstein was bragging about how effective Section 702 was in stopping “terrorists” (during a Senate debate on renewing the FISA Amendments Act) that it became clear that Verrilli had made false claims to the Supreme Court. Because in her bragging, she mentioned some specific cases that she said made use of Section 702 — and the lawyers for the defendants in those cases quickly realized that they were never informed about that.

To his credit, Verrilli himself not only claimed that he was misled by national security lawyers, but ordered that the practice be changed, and some defendants have since been informed.

Of course, to some, that has been too little too late. Back in November, we noted that Senators Mark Udall, Ron Wyden and Martin Heinrich pointed out a second false statement that Verrilli made to the Supreme Court in the same case. Specifically, the DOJ and Verrilli told the court that the NSA would have to have “targeted the communications” of someone that Amnesty was talking to, and that was “highly speculative” for Amnesty to assume that was true. But, as the Senators pointed out, it was later declassified that the 702 program was not just about collecting the communications to or from “targeted” individuals, but also any communications about them.

While this may seem like a small deal, it’s actually a very big deal, because it could likely mean that the communications of many Americans were collected without any sort of warrant. It turns out that in December, the DOJ responded, but that response has just been released. In it, the DOJ insists that lying to the Supreme Court concerning the fact that Section 702 allowed for the collection of purely domestic communications without a warrant if they were merely “about” a target (rather than to or from that target) was really no big deal at all and not relevant to the case.

Your letter raises questions regarding the now-declassified “about” collections that have resulted in the acquisition of some wholly domestic communications as a result of Section 702 surveillance and whether the government’s representations in Clapper v. Amnesty International were incomplete or misleading for failing to refer to such collections. The government acted appropriately by not addressing the “about” collections in Clapper v. Amnesty International because the existence of this type of collection was classified throughout the period during which the case was briefed, argued, and decided, and because those collections did not bear upon on the legal issues in the case. At all times, the Department and the Office of the Solicitor General have a duty of candor in our representations to the Supreme Court, and it is a duty we take extremely seriously. The Department and the Office of the Solicitor General also have a duty to respect the classified status of information, and that is also a duty we take extremely seriously. In litigation, we must take pains to avoid discussing matters that are unnecessary to the resolution of matters before the Court when those matters might disclose classified information or undermine national security, while ensuring that the Court has all of the information relevant to deciding the issues before it.

The Department’s briefing and argument in Clapper v. Amnesty International fully respected both of these duties. The Department described the surveillance authorized by Section 702 (and the provision’s targeting and minimization requirements) accurately, and we made no statements that could be reasonably understood as denying the existence of “about” collection. Moreover, the possibility of then-classified, incidental collection of domestic communications, while of undoubted importance and interest to the public, was not material to the legal issue before the Supreme Court.

Wyden and Udall have now responded to the DOJ’s letter and, not surprisingly, they’re still very troubled by the DOJ providing false and misleading information to the Supreme Court in a key case challenging the NSA’s surveillance under the FISA Amendments Act. First, the Senators note that, contrary to the DOJ’s claims, both the briefings before the Supreme Court and the oral arguments included statements which actively misled the Court into believing Section 702 only applied to communications to or from a target — and that clearly was not true.

More importantly, they note that, contrary to the DOJ’s claims, it’s pretty clear that this very much mattered as a part of the Supreme Court’s reasoning:

The Justice Department’s reply also states that the “about” collection “did not bear upon the legal issues in this case.” But in fact these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court’s analysis. In writing for the majority, Justice Alito echoed your statements to the Court by stating that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals — namely their foreign contacts.” This statement, like your statements, appears to foreclose the possibility of “about” colleciton.

We recognize that the inclusion of this misleading statement in the Court’s analysis does not prove that the Court would have ruled differently if it had been given a fuller set of facts. Indeed, it is entirely possible that the Court would have ruled in exactly the same way. But while the Justice Department may claim that the Amnesty plaintiffs’ arguments would have been “equally speculative” if they had referenced the “about” collection, that should be a determination for the courts, and not the Justice Department, to make.

While this seems like a technical issue, it’s a huge deal. Effectively, the DOJ and Solicitor General Verrilli — whether on purpose or not — misled the Supreme Court on two key aspects of the 702 collection program, and it appears that the Supreme Court relied, in part, on both of those misleading statements in coming to its decision. The fact that the DOJ still appears rather unconcerned about how its misrepresentations may have impacted the courts is immensely troubling, not just because it may have resulted in an illegal and unconstitutional surveillance program continuing for many extra years, but also because it highlights the mendacity of the DOJ in trying to win cases at all costs, rather than actually trying to make sure the law is applied appropriately.

As the new letter from Udall and Wyden concludes:

As we have noted elsewhere, we are concerned that the executive branch’s decade-long reliance on a secret body of surveillance law has given rise to a culture of misinformation, and led senior officials to repeatedly make misleading statements to the public, Congress and the courts about domestic surveillance. The way to end this culture of misinformation and restore the public trust is to acknowledge and correct inaccurate statements when they are made, and not seek to ignore or justify them.

It’s unfortunate that it appears that so few in Congress are up in arms over this. The executive branch purposely misleading the judicial branch over constitutional issues is a very big deal, and most in Congress don’t seem to want to have anything to do with it.

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Comments on “DOJ Still Trying To Hide The Fact It Flat Out Lied To The Supreme Court About Domestic Surveillance”

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Mason Wheeler (profile) says:

What exactly does “about” collection mean? If I have an email conversation with someone discussing the War on Terror, and I happen to mention someone like Osama bin Laden, does that somehow make me a target?

I’m already only three steps removed from him if we’re going to play Five Degrees of Osama Bacon: my grandfather (a telecommunications engineer) did some work for the bin Laden family. He says that they’re pretty decent people overall. (This was several decades ago, before I was born and before Osama was radicalized.) Does this somehow implicate me, then?

Mike Masnick (profile) says:

Re: Re:

What exactly does “about” collection mean? If I have an email conversation with someone discussing the War on Terror, and I happen to mention someone like Osama bin Laden, does that somehow make me a target?

Close. It does not make you a “target” but (importantly) DOES (under the NSA’s belief) give them the right to get your email.

That’s why “about” is such a big deal. “To” and “from” Osama bin Laden, you can understand. “About” Osama bin Laden opens up a HUGE amount of other people’s emails, nearly all of whom are likely completely innocent (and Americans, who the NSA is not supposed to be reading their emails).

Anonymous Coward says:

It’s funny how the government keeps ‘telling the least untruthful’ answers, and ‘accidentally misleading’ those that are supposed to be reviewing and overseeing these programs.

It’s like a kid that got caught with their hand in the cookie jar and when asked to show what’s behind their back, they switch hands before they show us what they have.

Anonymous Coward says:

Re: Extraordinary writ

? they decided a case on false information.

You underestimate how much the court system values finality.

Take a simple case, for instance: ? Prosecutor withholds Brady material, and some guy gets convicted and sent to death row. Years later, after all the appeals have been exhausted, the wrongly-withheld Brady material finally comes to light and proves the prosecutor knew all along that the guy on death row didn’t do it. Now, you would think they shouldn’t kill the guy on death row, but ? finality.

Rekrul says:

Notice that for all the supposed outrage over this, the senators’ letter is still full of polite, soft-spoken language like “misleading statement” rather than just coming out and saying that they lied.

Every time I read about these senators sending letters about the intelligence community, I can’t help picturing a scene from a movie where an underling is trying to point out the law to an angry dictator, but doing so in a way that (hopefully) won’t anger them.

Lurker Keith says:

Seems relevant here, too...

As I posted not too long ago

Someone needs to just come out & sue the US Government for breach of the Constitution. They could lay out which Amendments, but when I did an analysis a while back (not going to look for that post), about the only ones left unscathed were rules like voting rights, how to elect people or collect taxes, etc. (basics of how the government runs, in other words).

If they deny that such a suit could go forward, that only leaves Revolution as an option.

We also need an Amendment making lying while in Office (elected or not), or Campaigning for Office, illegal & include real punishments, & not just Impeachment.

Might as well do an Amendment outlawing keeping the Citizens in the dark while we’re at it.

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