Adam Liptak of The New York Times yesterday brought new public attention to the government's troubling failure to make good on its statements to the Supreme Court last fall, in Clapper v. Amnesty. In that case, the Supreme Court rejected the ACLU's challenge to the warrantless wiretapping program on standing grounds, ruling that the plaintiffs in the case couldn't demonstrate that they had been harmed. But that ruling came only after the government repeatedly assured the court that it would have other opportunities to review the controversial law. The government specifically told the court that criminal defendants who were prosecuted based on evidence obtained under the FISA Amendments Act (FAA) would receive notice of that fact, which would allow them to challenge the statute.
The Supreme Court took the government at its word. In its opinion rejecting the ACLU's lawsuit, the Court repeated and relied on the government's representation that the law would be subject to challenge by criminal defendants.
Events since that time have told a very different story. As Liptak sets out in his chronology of these events, federal prosecutors have repeatedly failed to give notice of FAA evidence to criminal defendants.