Double Secret Behind the Back Surveillance

Adam Liptak had an incredible report in yesterday’s New York Times that surely adds fuel to fire on the government’s warrant-less snooping. You will recall Clapper v. Amnesty International where a group of activists, lawyers, various groups challenged the 2008 surveillance law (FISA Amendments Act) permitting programmatic surveillance. Obama’s Solicitor General Donald Verrilli moved to dismiss for lack of standing because those suing could not show they had actually been harmed by the program. How, in effect, would they know if their communications had been intercepted. How indeed?

The Court agreed with Verrilli. However, a significant admission by Verrilli was made in his brief and oral argument that those under arrest from information gathered by the 2008 law had standing to challenge its constitutionality. Prosecutors would have to give disclose this information to the accused.

Contrary to Verrilli’s statement to the Court in October of last year, the practice subsequently by federal prosecutors has been the opposite. Here’s what they are denying, or maybe just don’t know, but that seems doubtful to me. I’m quoting Verrilli

If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition. (Again, note the phrase “derived from.”)

Liptak reports on 2 prosecutions this year where an arrest was made, most likely, on the basis of information obtained from the 2008 law, but prosecutors have refused to reveal the source of that information to the accused. They can’t challenge what they don’t know for sure. Federal prosecutors are so far ducking Verrilli’s claim made before the Supreme Court. In one case, the federal judge has ordered them to disclose it and the feds have filed for reconsideration. In effect, the Court’s question to Verrilli remains: Can anyone challenge the 2008 surveillance law’s constitutional status?