Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Weekend Contributor

Thanks to the disclosures made by whistleblower Edward Snowden, we now know how far our government went to hide the warrantless surveillance by the NSA. “If you blinked this week, you might have missed the news: two Senators accused the Justice Department of lying about NSA warrantless surveillance to the US supreme court last year, and those falsehoods all but ensured that mass spying on Americans would continue. But hardly anyone seems to care – least of all those who lied and who should have already come forward with the truth.

Here’s what happened: just before Edward Snowden became a household name, the ACLU argued before the supreme court that the Fisa Amendments Act – one of the two main laws used by the NSA to conduct mass surveillance – was unconstitutional.

In a sharply divided opinion, the supreme court ruled, 5-4, that the case should be dismissed because the plaintiffs didn’t have “standing” – in other words, that the ACLU couldn’t prove with near-certainty that their clients, which included journalists and human rights advocates, were targets of surveillance, so they couldn’t challenge the law. As the New York Times noted this week, the court relied on two claims by the Justice Department to support their ruling: 1) that the NSA would only get the content of Americans’ communications without a warrant when they are targeting a foreigner abroad for surveillance, and 2) that the Justice Department would notify criminal defendants who have been spied on under the Fisa Amendments Act, so there exists some way to challenge the law in court.

It turns out that neither of those statements were true – but it took Snowden’s historic whistleblowing to prove it.” RSN

Maybe I am still naïve, but would any of us have the same ability to lie in sworn documents to the Supreme Court and not have consequences?

The two Democratic senators mentioned in the RSN article linked above are Mark Udall and Ron Wyden.  The case in question is Clapper v. Amnesty International which was a case brought to challenge the constitutionality of the law which authorized the now infamous NSA warrantless wiretapping.  The majority opinion as quoted above, relied on the alleged facts that the plaintiffs could not prove that they were actually spied upon.  When Mr. Snowden made his historic disclosures it became obvious that the Justice Department had “fibbed” to the Supreme Court. We previously discussed the Clapper case here.

Did the Justice Department come clean when Snowden blew his whistle?  I think you can guess the answer to that questions.  According to the New York Times, the letter that Senators Udall and Wyden sent was written because the Justice Department did not admit to the untruthful statements that were relied upon by the Supreme Court majority, even after the Snowden disclosures.

“It emerged that the Justice Department was not notifying defendants in situations when warrantless surveillance had led in turn to a wiretap order on an individual that produced evidence used in court. Mr. Verrilli fought an internal battle last summer to change the practice, and prosecutors have been belatedly notifying defendants, who have clear standing to challenge the constitutionality of the spying.

And in August, it surfaced that the N.S.A. was also systematically scanning Americans’ cross-border emails without warrants and saving copies of any messages that contained discussion of a surveillance target. That meant the plaintiffs did not necessarily have to be in contact with an intelligence target for their communications to be intercepted without a warrant.” New York Times

As the New York Times articles suggests, we don’t know if Solicitor General Verrilli knew that he was not stating the truth when he argued the Clapper case in front of the Supreme Court.  Of course, what the Justice Department has done since Mr. Verrilli found out the truth about the NSA’s wireless wiretapping procedures and the Justice Department’s feeble attempts to notify criminal defendants who were spied on, indicate that it is “cover your backside” time in the Justice Department.

“In its December letter, the Justice Department argued that its description of the law had been accurate and noted that “based on a recent review” it had adopted a less constrained interpretation of its duty to notify defendants and had changed its practice. It has also defended itself in related court filings.

The department has argued as well that it was appropriate not to tell the court about scanning Americans’ international emails and saving those that discussed targets, because that activity had been classified at the time and was not relevant to the legal question before the court — whether the plaintiffs had standing.

But Mr. Udall and Mr. Wyden argued that the fact that the information was classified at the time did not make it acceptable to mislead the court into believing Americans’ international messages must be to or from a target to be collected without a warrant.” New York Times

If I understand the Justice Department’s December response, they are arguing that since they have changed their procedures to comport with their earlier claims and since the extent of the NSA spying program was classified at the time of the Supreme Court hearing they didn’t have to tell the Supreme Court of the United States the truth!

While I am not very confident that the Roberts Court would have found for Plaintiffs, even if the Snowden disclosure were made prior to the decision, at least the legal team for Plaintiffs could have made the argument to the Court.  And some criminal defendants who were being tried using secret evidence would have been able to contest the legality of the evidence in court.

What does it say about the NSA that they would lie about their massive spying program to the Supreme Court? What does it say about a Justice Department that still claims that their lies and untruthful statements in briefs to the Supreme Court were really not lies because the country was not supposed to know about the truth?  As an attorney who has communicated with clients overseas, the Snowden disclosures are troubling, to say the least.

To paraphrase a famous politician, Who is going to jail?   Would any defense attorney be able to make these same claims that the Justice Department is making after it is disclosed that their truthiness is in question?   Do you think the Justice Department should face sanctions or consequences for their false statements?  Should the NSA’s officials that provided the false information to the Justice Department face any consequences?  I, for one think that anyone who knowingly makes false statements to the Supreme Court should be called on the carpet.  What do you think?

I want to send a shout out to Bob Esq. who called this story to our attention!

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