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!
“The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.”
Iran Contra, Watergate, the first that come to mind. Lying under oath and to the country, and federal bodies is nothing new. Each time it is gotten away with, it emboldens the next guy and the next administration. Blind justice and government seems to be an oxymoron.
leejcarroll – I think lying to the country goes back to the American Revolution. It is part of what makes us what we are. 😉
Daren = Darren – so, so sorry. 😉
I found the video of the Frontline story I mentioned (part 1: part 2 is airing this coming week)
http://video.pbs.org/video/2365245528/
Daren – thanks for the video will watch it later today.
There was a good story on Frontline last week describing the origins of the NSA citizen spying program. The program was quite engaging. The administration official that instigated the over-reach was Vice President Cheney. Later, it became embraced by President Bush, not too much later that is, and Ultimately President Obama.
It seemed to me anywhere along the way the three could have reigned in this domestic spy program but they chose to keep it running.
The big worry here, that most people who are willfully ignorant of what is going on with the NSA, is it only takes a change of intentions to transform the NSA program to be the worst police state in history. The practices of the Stasi would not come close by comparison.
Ohhhh sorry, I forgot to write Wiretaps….
Tho, I thought that would be OBVIOUS being what we are talking about….
That is what we are talking about….
NSA Wiretaps did start under Bush….
I’m tired of this “Color of Law” willful blindness
(and the censor bots/police too)
So, I’m going to sue and take the ignore you stage that has become the ridicule stage – and turn into the fight you (moi) stage.
Well, Ladies & Gentleman –
I’ve got confessions to lying under oath – DELIBERATELY – to a Chief Justice
who said (in Transcript) – I don’t want to here you (about the fraud)
and concludes
She has to get back to Tweeter.
Well, Ladies & Gentleman –
I’m contemplating suing Holder/DOJ for lying to the public.
Court just signed an Affidavit swearing my case is in bad faith.
I’ve got confessions to lying under oath – DELIBERATELY – to a Chief Justice
Laser – if you start a Kickstarter fund let me know. I’m in.
Well, Ladies & Gentleman –
dig into this…..
Holder came out (again) saying NO one is too big to jail;
but we have over 100 crimes in our cases related to my RICO lawsuit
(Haas v Romney Los Angeles Fed Court 2:13-cv-7738)
Laser – You don’t actually believe Holder do you?
justagurl–wherever,
“and NONE of us wanted the NSA…. But, the Right Wing wanted it under Bush…. We Left HATED it…..”
Are you stating the NSA started under Bush?
You should have stayed in Sweden.
Don’t trip on your heels.
Unbelievable – the source of the NSA started in 1917. It has changed several times over the years into it current form.
Slarts,
As to number 1, “The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, a practice that government officials have openly acknowledged. It is also casting a far wider net for people who cite information linked to those foreigners, like a little used e-mail address, according to a senior intelligence official.
While it has long been known that the agency conducts extensive computer searches of data it vacuums up overseas, that it is systematically searching — without warrants — through the contents of Americans’ communications that cross the border reveals more about the scale of its secret operations. ” NYT
(linked above) That same article states that Snowden hinted at the collection process and led reporters to this story.
I did not discuss whether Snowden is a spy, but rather labeled him a whistleblower because I believe his disclosures were necessary. The issue of how the information disclosing the allegedly illegal activity was obtained does not diminish the false statements made to the Supreme Court who apparently relied upon them.
The Fourth Amendment is a start, and the FISA Act as amended since the collectors went farther than authorized. Also, the Justice department filings contained untruthful statements as discussed above and those untruthful filings may be violations of the Federal Law along with possible perjury if they were sworn to in court.
I don’t understand your second question. By the way, I know my math will rarely add up, but I believe the sources linked do reflect that the Justice department made false statements to the Supreme Court. By the way, how many is a couple?? 🙂
Raff,
I’ve got a couple of questions…
Where did Mr. Snowden show that the content belonging US citizens was being collected by the NSA without a warrant?
Can you give a definition of “papers and effects” that includes metadata?
Can you tell me what law was violated by the NSA programs in question?
How about a definition of “surveillance” that covers the collection and analysis of metadata?
Or a definition of “espionage” that doesn’t cover Mr. Snowden’s actions?
I think if you “do the math” on your assumptions, so to speak, your argument doesn’t add up…
😉
Slartibartfast – if you assume a secret court with secret warrants, how can you be sure they did not have a right to bug what ever they wanted. In saying this, I am not saying or agreeing that they should have. I think there should be no secret courts and no secret warrants, but we do have them for some damn reason.
Paul, I don’t disagree with you…..
However….
The time to have stopped this was AS it was getting started….
NOT 8 or 10 years later…
It would be NO different if McCain was in Office or Romney….
justagurl – as it was set up, I was nervous about it, but it was carefully set up to capture foreign phone calls into the United States. I was nervous about that, but could see a purpose at the time. I do not see its current purpose.
“Did The Justice Department Lie to the Supreme Court…And Get Away With It?”
I’d be more surprised if someone from the Obama administration told the truth…just once.
snibbodmot – I would be in shock. My doctor would have to have me hospitalized.
The TIME to stop this was BEFORE it got started….
and NONE of us wanted the NSA…. But, the Right Wing wanted it under Bush…. We Left HATED it…..
Now there is just NO WAY that it is going to end…..
Too bad you can’t put toothpaste back into the tube….
and ONCE the Feds start spying on the citizens, that is NOT going to stop either…..
——————————————————————————-
Obama’s Director for National Intelligence, James Clapper, has declassified new documents that reveal how the NSA was first given the green light to start collecting bulk communication data in the hunt for Al-Qaeda terrorists after 9/11.
President Barack Obama’s administration has for the first time publicly confirmed “the existence of collection activities authorized by President George W. Bush,” such as bulk amounts of Internet and phone metadata, as part of the “Terrorist Surveillance Program” (TSP).
The disclosures are part of Washington’s campaign to justify the NSA’s surveillance activities, following massive leaks to the media about the classified programs by former NSA contractor Edward Snowden.
Clapper explained on Saturday that President George W. Bush first authorized the spying in October 2001, just weeks after the September 11 attacks.
justagurl – Obama could pull the plug. He has the power.
WE liberals told you Right Wing that when the shoe of the Patriot Act was going to be on the other foot, that you would NOT like it…..
WE were told to shut up, we want to be secure….
Of course I don’t like this, However, It is silly to think that it would be any different under any other president is fooling themselves…..
and PLEASE let’s stop pretending that Obama started this mess.
justagurl – I don’t pretend that Obama started it, but he is in charge of the mess now and he owns it.
Karen S: “Even Liberal representatives cannot ignore the displeasure of a majority of their constituents.”
Of course they can and they frequently DO with, unfortunately, the same frequency that Conservative representatives do.
kraaken – well, they give lip service to the constituents and them screw them over until it is time to get elected again. John McCain is a perfect example although he is really a RINO.
Thanks Bob !
So many great comments here….Justice Holmes, Karen, and others. It is sad that this story was not the headliner on the major networks’ evening news broadcasts. And, to add to the discussion of talking to our elected reps…..no evidence that it will make one shred of difference. I have personally written, emailed, and visited my congresspeople and am left feeling that I was, at best, dismissed. So what can We The People actually do about this? Our options at the poll booths do not seem to offer a solution. Is there a brave attorney out there willing to take a massive “class action” type of lawsuit on behalf of us little guys and find a creative way to actually get it heard? This post brings awareness to the masses….which is needed….and a few others have bravely written articles and texts but I would venture to guess that most people still don’t realize this is going on. And if they do find out….what solution is there to affect change? I apologize but I am teetering on the brink of despair and hopelessness when it comes to our government. As Cody says above….I weep for my country.
wellcallmecrazy – I think only the plaintiffs can do something about it legally. The DOJ is out of hand lately because of its leadership and the leader of its leadership. You would think that progressives and liberals would be up in arms and storming the White House over this, but since their guy is in office, they are going to take one for the team.