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
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
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.