DOJ Still Ducking Scrutiny After Misleading Supreme Court on Surveillance

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Solicitor General Donald Verrill Jr. arguing before the Supreme Court. (Dana Verkouteren/Associated Press)

In October 2012, United States Solicitor General Donald Verrilli Jr. was in a tight spot.

Seeking dismissal of a legal challenge against an NSA warrantless electronic surveillance program, the Department of Justice had taken the position that the rabble-rousers represented by the ACLU had no standing to sue because they couldn’t prove they had been subjected to surveillance. But who, if anyone, could prove they were harmed by a program cloaked in secrecy?

Verrilli was ready with an answer: those criminals who had been caught by the program. In both written and oral arguments, the solicitor general assured the Supreme Court that the DOJ was bound by law to notify defendants when the program was used against them, stating that if the government planned to use evidence derived from the surveillance in court, “it must provide advance notice to the tribunal and the person.” It was an effective argument and one the Court ultimately found persuasive.

It just wasn’t true. While the DOJ had utilized warrantless electronic surveillance to identify suspects for years, no criminal defendant had received such notice. Ever. Once this discrepancy was exposed, the DOJ reversed course and began providing notice to defendants in late 2013.

Yet the critical question of how and why the Obama administration misled our highest court remains unresolved.

Verrilli’s false assurance to the Court came in the context of the ACLU’s lawsuit – Clapper v. Amnesty International USA -- challenging the constitutionality of the National Security Agency’s warrantless surveillance authority under Title VII of the Foreign Intelligence Surveillance Act, codified as U.S. Code § 1881a.

Title VII, which was added by Section 702 of the FISA Amendments Act of 2008, provides statutory authority for warrantless surveillance. Specifically, Section 702 allows the NSA to obtain electronic communications (phone, email, etc.) of targets “reasonably believed to be located outside the United States,” from telecoms and internet service providers without a court order. Though it was not known at the time of the suit, because of information provided last summer by Edward Snowden we now know the internet collection program was known within the NSA as PRISM. The ACLU suit argued that the law vests the executive branch with “sweeping and virtually unregulated authority to monitor the international communications – and in some cases, purely domestic communications – of law-abiding U.S. citizens and residents.”

Endeavoring to avoid judicial review of the program, the Obama administration sought dismissal of the case through the narrow, technical doctrine of standing. Under this principle, a plaintiff cannot sue based on mere speculation of harm. As solicitor general, it was Verrilli’s job to sell the administration’s position to the Supreme Court; specifically, that the group comprised of attorneys and human rights, labor, legal, and media organizations represented by the ACLU lacked standing because their injuries were speculative. Due to the secret nature of the program, the Clapper plaintiffs had no evidence that they had been targeted for surveillance. It was a Kafkaesque burden of proof. Indeed, during oral argument in October 2012, Verrilli had barely completed his introduction to the Court before Justice Sonia Sotomayor asked point blank: “General, is there anybody who has standing?”

Verrilli had addressed this issue of unchallengeability in his July 2012 brief, citing a provision of the FISA statute that requires the government to provide advance notice to a criminal defendant if it intends to use any information “obtained or derived from” the 702 program. Verrilli reiterated this position in response to Justice Sotomayor’s question, stating that if a criminal defendant “gets notice that the government intends to introduce information in a proceeding against them,” then “[t]hey have standing.”

The Supreme Court accepted Verrilli’s argument and Justice Samuel Alito, writing for a 5-4 majority, cited the notice requirement in his opinion rejecting the challenge based on standing. But questions had already started to emerge about whether Verrilli’s statement was accurate. In December 2012, two months before Justice Alito’s opinion, Senator Dianne Feinstein (D-Calif.) boasted of the success of the 702 program in identifying and arresting terrorists. But these arrests had not produced any examples of notice in action.

According to the New York Times, Verrilli himself was eventually troubled enough to question national security prosecutors about whether they were, as he had claimed, actually providing notice. They weren’t. The Times‘ sources claimed that when Verrilli found out the truth, he successfully argued within the Justice Department that there was no justification for the lack of notice and the DOJ changed its procedures.

In late 2013, the Department of Justice finally began providing notice of warrantless surveillance to defendants. To date, three defendants have been informed: Jamshid Muhtorov in October 2013, Mohamed Osman Mohamud in November, and Agron Hasbajrami just this past week. The DOJ’s first public explanation of its conduct came in the case of Mohamud, a Somali-American who had been arrested as a 19-year-old in November 2010 for allegedly attempting to detonate a car bomb in Portland, Oregon (in a plot designed and supervised by the FBI). It is unclear how Mohamud fell under 702 surveillance, but a subsequent warrant for his online communications was obtained by the FBI. While Mohamud’s pre-trial notice informed his defense of the warrant, no mention of 702 surveillance was made.

Three years later, the government filed a supplemental notice admitting that the 702 program played a role in Mohamud’s case:

This supplemental notice is being filed as a result of the government’s determination that information obtained or derived from Title I FISA collection may, in particular cases, also be “derived from” prior Title VII FISA collection. Based upon that determination and a recent review of the proceedings in this case, the United States hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. §§ 1806(c) and 1881e(a), that the government has offered into evidence or otherwise used or disclosed in proceedings, including at trial, in the above-captioned matter information derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1881a.

The disclosure came a little late for Mohamud, who had already been convicted 10 months earlier and was awaiting sentencing. U.S. District Court Judge Garr King delayed sentencing to allow Mohamud’s attorneys to seek an explanation from the DOJ behind the shift in policy. That explanation arrived earlier this month. According to the DOJ’s February 13 brief, prosecutors simply “had not [previously] considered the particular question of whether and what circumstances information obtained through” an individualized FISA warrant “could also be considered to be derived from prior collection under” Section 702.

Notably absent from the brief was any type of documentary evidence in support of the DOJ’s account. The brief also made passing mention of Verrilli’s statement to the Supreme Court — in a footnote — declaring that Verrilli’s assertion to the Court was “an accurate statement of both the law and the government’s previous and current understanding.”

Here’s what remains unresolved:

First, if Verrilli read the statute to require notice, how had the DOJ, in practice, come to the opposite conclusion? The DOJ claims it never even considered whether follow-up surveillance based on initial Section 702 collection could be considered derivative, entirely ignoring half of the statute and violating a cardinal rule of statutory interpretation that all words in the statute be given meaning. As my colleague Marcy Wheeler points out, it is particularly difficult to believe the DOJ’s claimed interpretation given the inconsistency in how it interpreted the word “derive” in a virtually identical context. For example, if electronic surveillance A led to search warrant B, notice was given. But if warrantless electronic surveillance A led to targeted electronic surveillance B (a practice that was further confirmed during a congressional hearing on Tuesday)? No notice.

Second, how did Verrilli come to make his claim? The New York Times reported that lawyers in the DOJ’s National Security Division vetted Verrilli’s claims and helped prepare him for oral argument. When did he discover he had misled the Court? Before or after Clapper v. Amnesty was decided?

Third, the DOJ brief offers no proof to substantiate its asserted sequence of events. No documentary evidence. No affidavit. When facts are presented before a court, they generally must be substantiated through documentary evidence and sworn testimony. In this case, an affidavit, signed under penalty of perjury, attesting to the fact that notice never even came up pretrial, to when it came up, and to how the DOJ’s practices came to be reversed, would normally have been required. Is there contemporaneous documentary evidence supporting the DOJ’s claim?

Fourth, will the solicitor general be correcting the Supreme Court record? In a post at the Just Security Blog, Jameel Jaffer and Patrick Toomey, the ACLU attorneys who litigated Clapper v. Amnesty, argue that Verrilli should write to the Supreme Court and correct the record as he did in the case of Nken v. Holder.

Lastly, will the Justice Department’s congressional overseers demand answers? Senators Mark Udall (D-Colo.), Ron Wyden (D-Ore.), and Martin Heinrich (D-N.M.), in a November 2013 letter, called upon Verrilli to provide more information, stating their concern that “the Justice Department has not gone far enough to correct incomplete or misleading representations that we believe were made by the government to the Supreme Court in Clapper v. Amnesty.” A Justice Department spokesperson informed The Intercept that the Office of Legislative Affairs replied on Verrilli’s behalf on December 24, 2013. The DOJ declined to release the letter, but indicated it had no objection if the senators chose to do so. Among the lawmakers, only Senator Udall’s office was willing to confirm receipt of the DOJ’s response. Despite possessing the letter for two months, a spokesperson for Udall declined to release it, saying it would be shared in the coming weeks along with a response from the senator.

Our recent history shows that we cannot rely solely on the government’s word, even if it is operating in good faith. The lack of transparency about this obvious misrepresentation is cause for concern. Was this alleged oversight confined to Section 702, one of many controversial surveillance authorities? Or is that merely the tip of the iceberg? Lawyers have an ethical obligation to speak with candor to tribunals, especially when representing the government. Amazingly, Verrilli has managed to remain silent throughout this controversy. It’s past time we heard from him directly.

Special thanks to Marcy Wheeler for her consultation.

[See the graphic below, created by Robin Rumancik, for a visual juxtaposition of Mohamed Osman Mohamud’s case as it occurred in parallel with the events surrounding Solicitor General Verrilli’s claims in Clapper v. Amnesty International USA.]

A parallel timeline of events in the cases of U.S. v. Mohamud and Clapper v. Amnesty International USA.  Image courtesy of Robin Rumancik.

A parallel timeline of events in the cases of U.S. v. Mohamud and Clapper v. Amnesty International USA.
Image courtesy of Robin Rumancik.

Email the author: dan.novack@theintercept.com