NYT: A Secret Surveillance Program Proves Challengeable in Theory Only

JULY 15, 2013

A Secret Surveillance Program Proves Challengeable in Theory Only

By ADAM LIPTAK

WASHINGTON -- On Oct. 29, about seven months before the recent revelations about secret government surveillance programs, Solicitor General Donald B. Verrilli Jr. made a commitment [1] to the Supreme Court.

It was on the day Hurricane Sandy shut down the rest of Washington. The justices had made it to court through lashing rain, and they seemed to be paying particular attention when Mr. Verrilli, the Obama administration's top appellate lawyer, argued that a challenge to a 2008 surveillance law should be dismissed.

He said, a little comically in retrospect, that the human rights groups, lawyers and reporters who sought to challenge the law had no particular reason to think that their communications were being collected. The plaintiffs could not show they had been harmed by the surveillance program, he said, so they lacked standing to sue. Their fears, he said, were the product of "a cascade of speculation."

That was merely aggressive and effective advocacy.

Mr. Verrilli's responses to the first several questions at the argument have turned out to be more problematic. He was asked whether a ruling in the government's favor would mean that no court could ever assess the constitutionality of the program.

"Is there anybody who has standing?" Justice Sonia Sotomayor asked.

Yes, said Mr. Verrilli, giving what he called a "clear example." If the government wants to use information gathered under the surveillance program in a criminal prosecution, he said, the source of the information would have to be disclosed. The subjects of such surveillance, he continued, would have standing to challenge the program.

Mr. Verrilli said this pretty plainly at the argument and even more carefully in his briefs in the case.

In one brief, [2] for example, he sought to refute the argument that a ruling in the government's favor would immunize the surveillance program from constitutional challenges.

"That contention is misplaced," he wrote. "Others may be able to establish standing even if respondents cannot. As respondents recognize, the government must provide advance notice of its intent to use information obtained or derived from" the surveillance authorized by the 2008 law "against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance." (Note the phrase "derived from.")

In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli's assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, [3] all but recited Mr. Verrilli's representation.

"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.")

What has happened since then in actual criminal prosecutions? The opposite of what Mr. Verrilli told the Supreme Court. Federal prosecutors, apparently unaware of his representations, have refused to make the promised disclosures.

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

In the Fort Lauderdale case, Magistrate Judge John J. O'Sullivan ordered the government to disclose [4] whether it had gathered information for the case under the 2008 law. He relied on Justice Alito's statement in the Clapper decision. The government has moved for reconsideration.

By insisting that they need not disclose whether there had been surveillance under the 2008 law, the two sets of prosecutors have so far accomplished precisely what Mr. Verrilli said would not happen. They have immunized the surveillance program from challenges under the Fourth Amendment, which bans unreasonable searches and seizure.

Yet there is excellent reason to think that surveillance under the 2008 law, the FISA Amendments Act, was involved in both cases. In December, in explaining why the law should be reauthorized, [5] Senator Dianne Feinstein, Democrat of California, said the Fort Lauderdale and Chicago cases were among the "specific cases where FISA Amendments Act authorities were used."

"These cases show the program has worked," she said.

Michelle Alvarez, a spokeswoman for the United States attorney's office in Miami, would not say whether prosecutors there had consulted with the Justice Department in Washington before taking a position that seems at odds with Mr. Verrilli's assurances to the Supreme Court. Neither would Randall Samborn, a spokesman for the United States attorney's office in Chicago.

A Justice Department spokesman in Washington said things might yet change in the two cases. "The legal issues raised in the filings are under active consideration within the department," he said.

Jameel Jaffer, the American Civil Liberties Union lawyer who represented the plaintiffs in the Clapper case in the Supreme Court, said the recent maneuvers were unseemly and disturbing. "The effect of the government's shell game," he said, "is that the statute has been shielded from judicial review, and controversial and far-reaching surveillance authorities have been placed beyond the reach of the Constitution."

Whatever the government's precise legal obligations, it remains free to say what everyone seems to know: that the 2008 program has been used to gather evidence for criminal prosecutions. Such a concession would seem to be a small thing. All it would do is allow the courts to make a judgment about whether the program is constitutional.

[1] http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1025.pdf

[2] http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-1025_pet_reply.authcheckdam.pdf

[3] http://www.supremecourt.gov/opinions/12pdf/11-1025_ihdj.pdf

[4] http://www.wired.com/images_blogs/threatlevel/2013/05/ORDER-granting-FAA-1806-motion-1.pdf

[5] http://www.gpo.gov/fdsys/pkg/CREC-2012-12-27/html/CREC-2012-12-27-pt1-PgS8384-2.htm