Techdirt is off for Memorial Day. We'll be back with regularly scheduled posting tomorrow!Hide

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.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Mason Wheeler (profile), May 14th, 2014 @ 2:36pm

    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?

     

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

  2.  
    identicon
    Anonymous Coward, May 14th, 2014 @ 2:46pm

    Re:

    Yes.

     

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

  3.  
    icon
    Mike Masnick (profile), May 14th, 2014 @ 2:47pm

    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).

     

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

  4.  
    identicon
    Anonymous Coward, May 14th, 2014 @ 2:50pm

    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.

     

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

  5.  
    identicon
    Christenson, May 14th, 2014 @ 3:17pm

    Extraordinary writ

    I think there's now enough here for the supreme court to grant certiorari again...as they decided a case on false information.

     

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

  6.  
    identicon
    Anonymous, May 14th, 2014 @ 4:01pm

    Re:

    In regards to. "...it flat out lied to the supreme court domestic surveillance" wouldn't make much sense.

     

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

  7.  
    identicon
    Anonymous Coward, May 14th, 2014 @ 4:42pm

    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.

     

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

  8.  
    identicon
    Rekrul, May 14th, 2014 @ 5:11pm

    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.

     

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

  9.  
    identicon
    Lurker Keith, May 14th, 2014 @ 9:49pm

    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.

     

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

  10.  
    identicon
    Chris Hayes, May 15th, 2014 @ 6:26am

    Re: Re:

    Exactly, It's a big deal because it proves they are intercepting just about everything, and not just metadata. There's no other way to know what communications fit the "About" criteria.

     

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

  11.  
    identicon
    Steve, May 15th, 2014 @ 6:41am

    If you're convinced that Verrilli lied to the Court in violation of Rule 8.4(c), here's your remedy: http://www.dcbar.org/attorney-discipline/for-the-public/file-an-attorney-complaint.cfm.

     

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

  12.  
    icon
    John Fenderson (profile), May 15th, 2014 @ 7:08am

    Re: Extraordinary writ

    That would be a glimmer of hope if the court system was about dispensing justice. Unfortunately, it's not.

     

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

  13.  
    icon
    John Fenderson (profile), May 15th, 2014 @ 7:09am

    Re:

    How is that a remedy? It wouldn't cause the case to be revisited.

     

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

  14.  
    icon
    bgmcb (profile), May 15th, 2014 @ 7:38am

    The system of checks and balances only works if each leg defends the constitution.

    As both parties are implicated what the chance of getting justice?

    What's the name of the statute that prevents prosecution if the AG is a co conspirator?

     

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

  15.  
    icon
    John Fenderson (profile), May 15th, 2014 @ 8:23am

    Re:

    Fortunately, the two political parties are not part of our system of checks and balances. Unfortunately, the entities that are (the three branches of government) also have given up on their duties.

     

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

  16.  
    identicon
    T.Durden, May 15th, 2014 @ 10:13am

    Re:

    Sir, you are already being targeted for this post right here.

     

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

  17.  
    identicon
    Anonymous Coward, May 15th, 2014 @ 11:10am

    Is it a disbarment-worthy offense to lie to the court (the Supreme Court no less)? Is there no punishment for such behavior?

     

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

  18.  
    icon
    John Fenderson (profile), May 15th, 2014 @ 11:31am

    Re:

    Technically, it's perjury, and is a jailable offense.

     

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

  19.  
    identicon
    Reality bites, May 15th, 2014 @ 12:20pm

    What else could be expected?

    You can't work for the US government if you have even a hint of ethics or humanity. It is the exclusive domain of psychopaths and ignorant thugs.

     

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

  20.  
    icon
    richard40 (profile), May 15th, 2014 @ 3:35pm

    Is it possible for the supreme court to reopen a case they have already decided, if there is evidence their decision was based on gov lies. If so, I think the best outcome might be for the court to allow amnesty international to reopen their case, so the court can issue a new decision that is not based on gov lies.

     

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

  21.  
    identicon
    PD Quig, May 15th, 2014 @ 8:26pm

    Invest in futures

    Guillotine futures.

     

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

  22.  
    identicon
    Pragmatic, May 16th, 2014 @ 3:15am

    Re: Re:

    @T.Durden, and that's the problem.

     

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

  23.  
    identicon
    Anonymous Coward, May 16th, 2014 @ 11:23pm

    Re: Re:

    They would have to KNOW it's a lie. That's the problem. Someone doesn't include inconvenient facts to win a case and it snowballs into a lie to the court.

     

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

  24.  
    identicon
    Anonymous Coward, May 18th, 2014 @ 6:40pm

    The last documents Glenn Greenwald publish shows they are collecting it all storing it all processing it all, and also using the data for under handed things.I suggest people go look at the stuff he posted, YES they are spying on you !

     

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

  25.  
    identicon
    Anonymous Coward, May 18th, 2014 @ 6:44pm

     

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

  26.  
    identicon
    Anonymous Coward, Jul 1st, 2014 @ 10:29am

    Re: Re: Re:

    And under the three hops doctrine, so have you

     

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
Advertisement
Essential Reading
Techdirt Deals
Techdirt Insider Chat
Techdirt Reading List
Advertisement
Recent Stories
Advertisement
Support Techdirt - Get Great Stuff!

Close

Email This

This feature is only available to registered users. Register or sign in to use it.