US Senators Mark Udall (D-Colorado) and Ron Wyden (D-Oregon) sent a letter to US Solicitor General Donald Verrilli Jr. accusing the Obama administration and its Justice Department of lying to the US Supreme Court with regard to constitutionality of the US National Security Agency’s (NSA) warrantless surveillance programs.
Udall and Wyden letter to US Solicitor General re:Clapper v. Amnesty.
Specifically, in Clapper v. Amnesty, (.pdf; 253KB) a group of civil liberties organizations challenged the constitutionality of the FISA Amendments Act of 2008 (FAA).
In general, the FAA requires the Foreign Intelligence Surveillance Act (FISA) court to automatically approve requests for electronic surveillance that a law enforcement agency claims is terrorism-related. The law enforcement agency is not required to identify the target of the surveillance and can begin surveillance up to one week before actually making the surveillance request. The FISA court’s rulings are secret and if it should happen to reject a surveillance request, the FAA allows the surveillance to continue pending appeal. The only limitation is that the law enforcement agency must believe that at least one party of the communication is outside of the US.
In Clapper v. Amnesty, the Obama administration argued that the civil liberties organizations lacked standing in the case because they couldn’t prove they had been warrantlessly wiretapped. The US Supreme Court dismissed the case in a 5-4 decision.
During the case, the Obama Justice Department argued that it was appropriate not to disclose that domestic email was surveilled and saved without a warrant because the surveillance program was classified. The Obama administration doubled down with another whopper, claiming that defendants who had been surveilled under the FAA would be notified and could challenge the law. And besides, focus: Only standing was relevant here, nothing else. Pay no attention to the man behind the curtain or that other hand waving over there.
Both statements by the Obama Justice Department were shown to be deliberate and willful lies when former NSA contractor Edward Snowden disclosed the working details of the NSA’s surveillance programs. The Snowden documents revealed that the NSA was searching the content of domestic email for any mention of surveillance “targets” and that the Justice Department had not notified defendants that they had been surveilled under the FAA.
As Trevor Timm writing for the Guardian points out, those lies “all but ensured that mass spying on Americans would continue.”