Senators Ask Solicitor General To Clear Up Past Lies to SCOTUS

Newsflash: The National Security Agency lied.

Okay, actual newsflash: they didn't just lie to We The People. They lied to the Solicitor General and the Department of Justice, and by extension, to the Supreme Court.

Nine months ago, the court decided Clapper v. Amnesty International, denying standing to the plaintiffs because it was totally speculative (and paranoid) that they were being spied on by the government. Except they were. We all were. And the Supreme Court's decision relied, in part, on two misrepresentations by the Solicitor General, Donald Verrilli, which were in turn caused by misinformation from the NSA.

Now, three congressmen, Senators Mark Udall, Ron Wyden and Martin Heinrich, in a letter to the Solicitor General, posted on Sen. Wyden's website, are asking the government to clear up any inaccuracies in the record. And while it may be too late for the Clapper case, at least the next time the Supreme Court hears an NSA case, it'll have the excuse (and supporting record) it needs to possibly rule the other way.

Two Lies

The Court's decision relied, in part, on the government's assertion that whenever information was sought pursuant to Section 702 of the FISA Amendments Act of 2008, the defendant would be notified. That wasn't the DOJ's policy. It is now, according to the letter, but it wasn't when the case was decided.

That wasn't the only lie. The government also assured the court that Section 702 surveillance was done on foreign suspects directly.

Instead, the program was wider, as Section 702 was interpreted by the NSA to allow the inclusion of wholly-domestic communications where a foreign suspect's identifier (such as an email address) was mentioned in a communication. In other words, it wasn't just a direct surveillance program, it included wider "upstream" surveillance of an estimated tens of thousands of domestic communications.

And, of course, we only know about the program thanks to a leaked Foreign Intelligence Surveillance Court (FISC) opinion from October 2011, where the court called the upstream practice, "a cause of concern for the Court," and a circumvention of the "spirit" of the law.

Corrective Action

The three Senators are not only asking Verrilli's office to fix the court's record, but also want answers to the following questions for Congress:

• Was the fact that the communications of Americans might also be collected under the FISA Amendments Act if they are communicating about an FAA target conveyed to the Supreme Court during consideration of Clapper v. Amnesty? If not, why not?
• Was the FISA Court's October 2011 opinion made available to the Supreme Court during consideration of this case? If not, why not?
• Do you stand by the statements and oral arguments the government made to the Court in Clapper v. Amnesty, including those concerning the provision of notice to criminal defendants? If so, please explain why.
• If not, can you please provide or describe each statement and oral argument that you no longer stand by and explain how you intend to correct the record with regard to each of those representations made to the Court in Clapper v. Amnesty?

Too Late for Clapper?

The plaintiffs in Clapper v. Amnesty International have already been denied relief, and it seems that there may not be a way to fix that, even if correcting the government's lies would tilt the Court's opinion the other way. In general, parties have 25 days to request a rehearing of the case, longer if they are given permission by the court. It's been nine months -- the case is pretty much final, absent some sort of extraordinary writ or remedy.

Still, even with the decision finalized, and with the court denying EPIC's epic writ request earlier this month in another NSA surveillance case, with the sheer amount of litigation going on regarding NSA snooping, it seems like a matter of time before the issue reappears on First Street. Hopefully, when it does, the court will make their decision on a complete and accurate record.

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Related Resources:

• US Gov't Appears To Have Misled The Supreme Court About How The NSA Spied On Americans (TechDirt)
• NSA Email Collection Violated 4th Amendment: FISA Court (FindLaw's Decided Blog)
• FISC Orders DOJ to Turn Over Documents; DOJ Refuses (FindLaw's Technologist Blog)
• FindLaw's Legal Technology Center (FindLaw)