US Gov't Appears To Have Misled The Supreme Court About How The NSA Spied On Americans

from the whoa dept

We've written a few times now about the fact that US Solicitor General Donald Verrilli pretty clearly made false statements to the Supreme Court in a key case concerning NSA warrantless wiretapping. The case, Clapper v. Amnesty International, mainly focused on who had standing to challenge warrantless wiretaps performed by the NSA. The government argued that since there was no evidence that Amnesty International was spied on, it had no standing. The false statement involved the claim that the government would have to inform defendants in cases where warrantless wiretaps were used that that's how the info was gathered. Except the government didn't do that.

It turns out that might not have been the only misrepresentation from Verrilli -- and this next one may be even bigger, involving misleading the Supreme Court on a loophole that allowed the NSA to spy on tens of thousands of Americans.

As was noted earlier this year, upon realizing what happened, Verrilli was apparently furious, and the DOJ has now changed its policy to match with what Verrilli said -- they now will notify defendants, but it's clear that they never did so before.

But Senators Mark Udall, Ron Wyden and Martin Heinrich have sent Verrilli a letter urging him to "set the record straight" with the Supreme Court... but not just on that issue of disclosing. Rather they highlight somewhere else they think he did not paint the correct picture:
In Clapper v. Amnesty, the majority opinion characterizes as “highly speculative” the plaintiffs’ fear that “the Government will decide to target the communications of non-U.S. persons with whom they communicate,” and states that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals – namely their foreign contacts.” These and other statements in the opinion indicate the Court’s view that the only way the plaintiffs’ communications could be intercepted under the FAA is if those communications are to or from a foreign intelligence target.

Yet with the disclosure and declassification in recent months of relevant documents regarding Section 702, the role of ‘about’ collection under the FAA is now public, although not widely understood. In addition to authorizing the collection of communications to and from foreign, overseas targets, the FISA Amendments Act also has been secretly interpreted to authorize the collection of communications that are merely about a targeted overseas foreigner.

This form of collection allows the government – through the “upstream” collection under Section 702 – to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target. But according to the FISA Court’s October 2011 opinion, the ‘about’ collection likely results in the acquisition of “tens of thousands” of wholly domestic communications every year. In other words, tens of thousands of emails between law-abiding Americans are likely being collected – even though these Americans are not actually communicating directly with a foreign intelligence or terrorism target. As FAA collection was intended to target persons “reasonably believed to be located outside the United States,” and targeting procedures were intended to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States,” the FISA Court in its October 2011 opinion called this expanded FAA collection a circumvention of the “spirit” of the law and a “cause of concern for the Court.”
Just to hammer this point home, they're saying that despite everyone, including the Supreme Court, clearly reading the law to say that Section 702 of the FAA is supposed to be limited to surveillance on foreign targets, it actually also allows surveillance on communications about foreign targets -- and that likely includes tons of communications of Americans. And these communications were believed not to be available under this program, including by the Supreme Court.

The Senators ask Verrilli if he clearly informed the Supreme Court of this at any point, and if not, suggest that he correct the record.
We believe that a formal notification to the Supreme Court of the government’s misrepresentations in the case — both relating to its notice policy and relating to its practice of ‘about’ collection under Section 702 of the FISA Amendments Act — would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court.
This seems rather important -- and a point that not many reporters have covered (which also might explain why the Senators are raising it, and noting that the revelation "is not widely understood.") This is a way of alerting people to the simple fact that the NSA has interpreted Section 702 to mean it can collect any communication deemed to be "about" a target, even if the communication is not from or to that target.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    bosconet (profile), Nov 25th, 2013 @ 10:09am


    ...the next time US Solicitor General Donald Verrilli appears before the court one of the Justices can ask why they should believe ANYTHING he is saying as he has been proven to mislead the court on at least one previous occasion.

    This won't happen of course because apparently executive branch officials can lie to the legislative and judicial branches with no fear of consequences....

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Nov 25th, 2013 @ 10:16am

    Not to be nit-picky or anything, but the Supreme Court IS part of the "US Gov't" isn't it? So you're saying one part of the US Gov't misled another part of the US Gov't. Unless my high school social studies teacher misled me.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Nov 25th, 2013 @ 10:42am

    Response to: Anonymous Coward on Nov 25th, 2013 @ 10:16am

    Everyone lies to everyone and we mostly do whatever we want/think we can get away with. It's always been true and human nature probably won't change any time soon.... but I'm always honest....

    reply to this | link to this | view in thread ]

  4. icon
    ChurchHatesTucker (profile), Nov 25th, 2013 @ 10:42am


    In court, the "US government" is normally the executive branch.

    reply to this | link to this | view in thread ]

  5. identicon
    Christenson, Nov 25th, 2013 @ 10:49am

    So, if I speculate about Osama Bin Laden's whereabouts in an e-mail???

    It's fair game for the NSA, even though I don't actually know the man or anything that isn't already very public???

    Methinks its time for Amnesty International to re-petition the supreme court for an extraordinary writ and I don't think the court will be happy about the perjury.

    reply to this | link to this | view in thread ]

  6. identicon
    Me, Nov 25th, 2013 @ 11:24am

    If I were US Solicitor General Donald Verrilli I would be livid that my integrity and legacy were tarnished by the NSA's lying to me. Frankly, if Mr. Verrilli doesn't correct the record, he should have his bar license revoked.

    reply to this | link to this | view in thread ]

  7. icon
    Baldaur Regis (profile), Nov 25th, 2013 @ 11:47am

    T hinking
    E ntirely
    R egarding
    R odents
    O ften
    R esults
    I n
    S evere
    M igraines

    Would this stupid trick be enough to trigger NSA scrutiny?

    If a 6 year-old can game your system, maybe you should RETHINK YOUR FUCKING SYSTEM.

    reply to this | link to this | view in thread ]

  8. identicon
    Rekrul, Nov 25th, 2013 @ 2:59pm

    I don't see how any of this is a big deal. There are clearly no penalties for lying and the supreme court no longer cares about people's rights. It's not like this will change anything.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Nov 25th, 2013 @ 3:50pm

    Donald Verrilli was a liar when he worked for the RIAA. Does it really surprise anyone that, as the US Solicitor General, he is still a liar?

    reply to this | link to this | view in thread ]

  10. icon
    Thomas (profile), Nov 25th, 2013 @ 4:04pm

    Re: Maybe.....

    To be fair to Verrilli, it appears he was lied to himself.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, Nov 25th, 2013 @ 4:18pm

    They've changed nothing

    "As was noted earlier this year, upon realizing what happened, Verrilli was apparently furious, and the DOJ has now changed its policy to match with what Verrilli said -- they now will notify defendants, but it's clear that they never did so before. "

    Old policy, don't tell defendants and claim you do.
    New policy, don't tell defendants and claim you do.

    How has this changed?

    reply to this | link to this | view in thread ]

  12. identicon
    David, Nov 26th, 2013 @ 1:50am


    Well, what do you expect from a Department of "Justice" led by an illegal arms trafficker and serial perjurer (Eric Holder investigated himself for his perjury before congress over the "Fast and Furious" weapon trafficking and let himself go free) who systematized blackmail (also known as "plea deal") in the U.S. "judicial" system?

    If the U.S. does not manage to keep organized crime from controlling the courts, of course this sets directions for the political landscape.

    reply to this | link to this | view in thread ]

  13. identicon
    christopher oloughlin, Nov 26th, 2013 @ 11:05am


    Privacy in 2013 is like Elvis has re-entered the building. Once its gone. All that is left is the wave-good-by.

    reply to this | link to this | view in thread ]

  14. identicon
    Jason, Mar 7th, 2014 @ 9:34am

    If you are poor, and get caught with possession of marijuana, and it's your 3rd strike, off to the slave camp where you will work until you die (private prisons).

    If you are rich and powerful and you lie to congress or the supreme court, you get to keep your job, collect your pension, and when you retire you get to be a talking head on a major news outlet talking about how great this country is.

    reply to this | link to this | view in thread ]

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