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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Nixon’s plumbers broke into the Watergate office complex and absconded with a file from a cabinet. OMG!
If only it was the WH.
Deniers of the duopoly tend to believe that religious tenet.
Actually the WH is a front, as is the congress, and more and more the courts.
The streets know a street play when they see one.
Question:
Why won’t the Republican lead House impeach on these grounds?
Prolly for the same reason the Dems folded under Bush…
… Accumulated POWER in one branch of Government.
People don’t amass POWER unwilling to use it…
Very good piece. This is the most secretive and crooked WH in my lifetime. In my lifetime, Nixon has been the worst President IMO. Obama is poised to put Tricky in 2nd place.
Not to mention they capture person to person video calls… That’s CONTENT not metadata.
They are working on facial recognition… Is your face CONTENT or is it metadata.
Metadata has become their Orwellian code word for CONTENT… All of it.
He’s so sure of himself… but not with THIS metadata…
… Ya, sure Mike. THAT metadata you kill with, and the other you spy with?
If metadata is now, ‘evidence of a crime’ we need to go back and look at what metadata is and what the NSA does with it and more.
They play back telephony from a month ago… That’s CONTENT not metadata.
They capture texts… That’s CONTENT not metadata.
So, which is it Mike? Content or metadata? Two legs or four?
Former NSA boss: “We kill people based on metadata”
Which was granted to us as a Nation first…
… The Fourth Amendment, or FISA?
Which was constructed during actual WAR TIME on our land, and which came about because of an “out of control Admin” violating Fourth Am. protections?
Now, which is happening again?
~ Fourth Am violations?
~ Actual wartime on our land?
How many more years must we be told that there is war on our land when in actuality that was one large event 14 years ago and real Fourth Am violations are only being enshrined into current policy?
Congressman Mike Rogers famously said, “If you don’t know that you’re being spied upon, then your Right hasn’t been violated.”
Not one person dared to correct him by questioning as to HOW one is to protect one’s self FROM such violations if he colludes to cover up the facts, himself, against his Oath of Office?
The security apparatus has now been caught lying to both the legislative and judicial branches of our government and NO accountability is to be found. There exists a secret court (FISC) completely separate from our legal system whose Constitutional interpretations affect every citizen.
The active erosion of Constitutional principles and the checks and balances of a three branch government can now be clearly seen. Those who don’t learn from history are doomed to repeat it.
The death knell of our country has officially sounded.
Two History Lessons in the Fourth Amendment
http://www.emptywheel.net/2014/05/18/two-history-lessons-in-the-fourth-amendment/
A nation of men, not of laws.
It matters who you are, not so much what you have done.
raff,
This Administration grants Federal trials to foreign nationals that are accused of plotting with Al Q… and withholds such conveniences for Americans. Why be surprised that the same Admin thinks the Fourth Amendment is but an inconvenience.
Due Process is for innocent Americans and foreign suspects…
… NOT for suspected Americans or the accused and spied upon.
This is the point where I ask that everyone engage their Representative and take part in their Government… Or… give $50k to Koch brothers to do it for your lazy azz.
Did The Justice Department Lie to the Supreme Court…And Get Away With It?
= = =
Come on raff,
You know it’s never when the Obama does it.
Tortures Gitmo detainees with forced feeding beyond the term he’d said he’d have it all closed down…
They kill people based on metadata, not what someone has been convicted of…
Spy on Americans with warrants…
What’s withholding evidence of the crime… When Obama does it.
Of course this is only one turd in a large punch bowl of liars, cheats and knaves. Of course they should be held accountable, but I see no icicles on the edges of hell from here. It is obvious we need massive change in the country, but I doubt anyone can find the time. Budweiser, Law and Order, and acquiring more things do not leave enough time to concern ourselves with such mundane matters. I weep for my country.
https://www.youtube.com/watch?v=YMJ2VDTQWSI
Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall NOT be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Is that sooooooo hard to understand, dear NSA?
What part of “NOT” don’t you understand?
Heck, it’s not even in code!
http://www.democracynow.org/2014/5/13/collect_it_all_glenn_greenwald_on
http://www.pbs.org/wgbh/pages/frontline/united-states-of-secrets/
Perjury and contempt are for the little fellow. Now perjury is kinda of a dicey one as the utter must be under oath. And hold it as a truth knowing its false. I kinda think with FISA we have that 9 headed monster, that gets uglier and uglier.
Reblogged this on News You May Have Missed and commented:
Did The Justice Department Lie to the Supreme Court…And Get Away With It?
If they were baseball players they would be prosecuted but there is a very different set of laws for folks like Clapper and Holder and the rest. They can lie to Congress, lie to the courts and pretty much commit murder with impunity. As if that weren’t tragedy enough in a country that was founded by men whose goal was to create a country that would not allow anyone to be above the law, the very people charged with oversight of these men have said nothing. Except for the two Democratic Senators, the DEMOCRATS have remained inexplicably silent. If the DEMOCRATS lose the midterms it won’t be because of ACA it will be because of President Obama’s utter disregard for the humans in this country and his willingness to turn a blind eye torture, spying, lying to congress and the courts as well as the destruction of the middle class and the deadly silence from the DEMOCRATS on these issues. Obama had an opportunity to turn this mess around but he decided to double down and to throw health care into the hands of the insurance companies. Sure we got a few scraps but the billions they will get are unimaginable.
There is just a different set of laws for some people.
Why is the headline expressed as a question?