October 22, 2013 | By Trevor Timm

When Will the Government Officially Correct the False Claims It Made to the Supreme Court About NSA Surveillance?

We’ve documented again and again how the government has refused to tell the truth about NSA surveillance to news organizations, Congress, and the American public. Now it seems clear we can add the Supreme Court to that list.

First, it’s important to remember that just months before Edward Snowden became a household name, the ACLU was before the Supreme Court challenging the FISA Amendments Act—a key pillar designed to justify much of the NSA’s surveillance. The ACLU argued that since their clients—journalists, advocates, and lawyers—were the prime candidates to be subject to this surveillance, the clients should be able to challenge the law as unconstitutional.

Unfortunately, the government successfully convinced the Court that the case should be thrown out on procedural grounds. The Court ruled the ACLU’s clients didn’t have “standing.” Essentially, because they had no definitive proof they were being spied on, so couldn’t challenge the law.

At the time, many thought this reasoning was absurd, including four dissenting Supreme Court Justices. Given the law’s incredibly broad reach, of course surveillance was occurring. “Perhaps, despite pouring rain, the streets will remain dry,” quipped Justice Breyer.

So in order to convince the Supreme Court to throw out the ACLU’s challenge, the government smartly argued someone could have standing to challenge the law.  Otherwise, it may have seemed absurd to at least one more Justice, and the case might have gone the other way.

Solicitor General Donald Verrilli told the Court any defendant charged with a crime would be officially notified if they were subject to NSA surveillance and then someone could challenge it—an actual target. Prosecutors, according to the government, just hadn’t used FISA evidence yet in any court case.

Turned out, that wasn’t true.

As the New York Times reported last week, “Mr. Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.”

In other words, the argument the Solicitor General used to convince the Supreme Court to dismiss a challenge to the FISA Amendments Act was false, and the Solicitor General deceived the Supreme Court, though perhaps not wittingly. When Verrilli confronted the Justice Department’s national security lawyers who briefed him for his argument, they explained away this false statement as “a misunderstanding,” according to the New York Times.

The Solicitor General has apparently convinced the Justice Department to change its policy and they now claim they will start notifying defendants. If the Justice Department follows through, this move should have implications across the board and will be a welcome shift.

Remember, just a few weeks ago Reuters reported that the Drug Enforcement Administration (DEA) was receiving tips from the NSA, distributing them to local law enforcement, and then covering them up by then obtaining the same evidence under different pretenses. As we explained at the time, this not only violates the Fourth Amendment, but the Fifth and Sixth Amendments as well, which guarantee defendants a meaningful opportunity to present a defense and challenge the government's case.

There’s also the enormous “Hemisphere” phone surveillance program, first revealed by the New York Times in August, which the DEA carries out in partnership with the AT&T. EFF just filed an amicus brief in a San Francisco case that looks suspiciously like Hemisphere surveillance was going on as well.

It’s too early to tell if the Justice Department is going to follow through on its promise to tell the truth about spying in criminal cases. Thankfully, the ACLU has sued under the Freedom of Information Act to find out the Justice Department official policies on notifying defendants of NSA surveillance.

This is only a start.  Informing criminal defendants of warrantless wiretaps only exposes illegal spying on a small few, and the Justice Department has made no promises to inform the millions of ordinary American’s caught up in the NSA dragnet. But it’s an important step forward, and could lead to a court to rule on the legality of the program.

ACLU deputy legal director Jameel Jaffer has also called on the Solicitor General to file a formal acknowledgement with the Court that the government’s policy was misrepresented to the justices during arguments. As Jaffer explains, there is ample precedent for the government to do so in situations similar to this.

It’s important for the Court to know that the government has not been honest with them, as the Court considers other representations about secret programs. Unfortunately, this is not the only time the government has provided false and misleading information to a court.  

The culture of misinformation around the NSA has to stop. EFF also calls on the Solicitor General to formally acknowledge to the Court its misrepresentations and promptly tell every defendant that was subject to NSA surveillance so they can challenge the unconstitutional laws behind it.


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