Obama Administration Conceals Use of Surveillance in Defiance of Promise to Supreme Court


Reason 24/7

In 2012, the United States Supreme Court turned away an American Civil Liberties Union challenge to warrantless domestic spying on the grounds that the civil liberties organization had no standing to sue over the practice.  The court's decision relied upon assurances from the Obama administration that surveillance targets would be notified that their communications had been intercepted and thereby be afforded an opportunity to go to court. Unsurprisingly, government officials have done everything in their power to not live up to that guarantee. The ACLU capably summarizes a New York Times piece that, in fine Grey Lady tradition, completely buries the lede.

From the ACLU:

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.

Specifically, notes Liptak of the Times, officials have concealed their sources of information, even when they use it in court, so that surveillance targets are unaware they've been snooped upon, and so in no position to mount a legal challenge.

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.

That information gathered by the NSA's massive surveillance program was used in these cases is clear not because of the government's explicit admission, but because Sen. Dianne Feinstein cited them as successes of the snooping scheme when arguing for reauthorization of the FISA Amendments Act.


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  1. Want due process from this administration? Just take the stairs all the way to the top and make a left.

  2. But the Department of Justice would never lie!

    No way!

    Maybe in the bad old days, before their office was reformed by a sweeping New Professionalism! But not today.

    1. They’ve pretty much always lied to defendants and their counsel, FOIA requestors, etc. My understanding was that they didn’t lie to the federal courts or congress; engage in misdirection and doing everything short of lying, but not actual lying.

    2. If they lied, we’d know because of how transparent the administration is.

  3. This. Is. Serious.

    The federal courts don’t like being played. Checks and balances work well in theory, but all it takes is the executive ignoring the judiciary and the game is up.

    1. Okay, so the administration is managing to seriously piss off both of the other branches. This is a Bad Idea. Especially if the Senate goes GOP next year.

      1. But the other two branches don’t have any cops, troops or other enforcement. They are at the mercy of the executive.

        1. Bring on that sort of constitutional crisis. That would wake up even many of our sheep.

          1. I wish I could be that optimistic. The unitary executive seems awfully popular these days.

            1. I think the administration wouldn’t get anywhere with the military, which keeps us relatively safe for now. The eventual open dictator will almost surely be a Republican populist.

        2. I thought cops were officers of the court.

          1. Right up until legislative decision-making and executive orders largely direct and fund their operations, a la drug war bullshit.

        3. Is this more “Mr. Marshall has made his decision. Let him enforce it” territory, or “the Pope? How many divisions does he have?”

          1. Impeach. . .the president?

            He’s out there operating without any decent restraint, totally beyond the pale of any acceptable human conduct. And he is still in the White House commanding troops.

            Impeach with extreme prejudice.

          2. More the latter. But where did that first quote come from? John Marshall era, obviously, but which case?

            1. Worcester v. Georgia. Indian case.

            2. Kurtz vs. Bank of the United States

              1. Mistah Kurtz–he dead.

                1. And Charley is squatting in the bush…getting stronger.

                2. Blast you, Sir.

                3. So is the Bank of the United States.

              2. Mr. Kurtz, he dead.

                1. To be sure, I just happen to be listening to Heart of Darkness on my commutes right now, so the quote quickly popped in my head.

        4. you are assuming that in a Constitutional crisis the troops would side with Obama.

          That is quite a large stretch to assume.

          1. I’m not totally unsympathetic with this line of reasoning, but I’m also unconvinced that most troops won’t simply follow orders from a terminally politicized chain of command. Even if soldiers themselves are apolitical or Constitutionalists, how many will go to the wall before the mass revolts?

        5. A corrupt machine politician who was mentored by a pro-communist terrorist who tried to bomb an army dance and who shits on the military when given half a chance doesn’t really have the troops either.

          The office of POTUS does, but who can say what will happen if the executive branch directly tells off the (however poorly) democratic part of government and the (however poorly) constitutional part of government.

      2. and don’t forget the “4th branch”, by spying on the AP.

        1. Yes, good point. They should start banning abortion or something next.

      3. Okay, so the administration is managing to seriously piss off both of the other branches.

        We said the same thing about the press, but that did fuck all to stop the administration from fucking us.

        1. I dunno, pissing off the press and the other two branches seems like one of those bad ideas to me.

    2. Trail of Tears mumble mumble

      1. Not getting it, Sarc. Was the ToT done by the executive in defiance of the courts or congress?

        1. “They made their ruling; now let them enforce it”

          That’s all I know. And for all I know the quote could be an urban legend.

        2. SCOTUS said that the states had no authority in Indian territory when they vacated the state of Georgia’s conviction of a missionary opposed to Indian removal for operating in Cherokee Country without state approval.

          Jackson basically told Marshall to fuck off and declined to enforce the decision, which stated that only the Federal government and Congress can deal with the Indian tribes, which are all sovereign nations.

          1. So there have been instances of the executive blatantly defying the judiciary. Ugh.

            1. Doesn’t it happen all the time? Look at all the cops that defy court rulings on recording their actions in public.

            2. Cops are employees of the executive branch, but that’s different from the actual executive (President, Governor or Mayor) openly defying the courts.

              1. branches

    3. The Supreme Court will no longer be of any concern to us. I’ve just received word that Obama has dissolved the council permanently. The last remnants of the Old Republic have been swept away.

      1. How will you keep the local systems in line?

        1. Fear…fear and SugarFree works of fiction.

          1. I was picturing a giant car, like one of those 70s Cadillacs, made of some invulnerable material, with chandeliers on the hood.

            1. Kurt Russell…I’ll be in my bunk.

              1. Kurt Russell

                Supporting Protagonist in the Greatest Movie of All Time.

        2. Community Organizers will have direct control over their? communities.

  4. 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.

    So clearly SCOTUS will change its mind when the case is brought up again, right? I mean when the Solicitor General is shown to be full of shit and the law meaningless they have to fix it.

  5. How many regiments does SCOTUS have? /ghost of Stalin

    1. Can they have ninjas? I feel like ninjas would suit the black robed judiciary nicely.

      1. No, damnit, you’re missing the obvious parallel. Think Judge Dredd!

    2. Yeah, that quote has been on my mind, too. Not in a good way.

      1. Wow. I hadn’t read sarcasmic’s or Lord Humungus’ posts when I wrote my 3:07 above.

  6. This really is a fuck you that is why. I seriously doubt that there are any federal cases where they are using this information. But they refuse to say one way or another. All they would have to do is disclose “none of the information was collected under the 2008 Law” and the ACLU would have no bitch.

    Maybe they are not doing that because they really are using the information and don’t want to tell anyone. But I find that unlikely. The information is only good if you can get it before the court. And to do that you have to say where it came from. Maybe they are using this as a way to know who to investigate and then use normal means after that to collect the evidence to be used in court. But that seems pretty convoluted.

    I think they are not using it. But refuse to say they are not because in their view the courts can go fuck themselves. They don’t have to talk about their secret program if they don’t want to.

    1. Violating the War Powers Act after involving the US in hostilities in Libya really came back to bite the OA when Congress stood up and demanded the law be followed, oh wait…

      1. I do think this administration’s open contempt for the power of the other branches and, for that matter, the Constitution, will bite it in the ass, soon enough. I don’t think we get to 2016 without a special prosecutor at the very least, and impeachment of multiple officials grows increasingly likely.

        We need to stop the fucking madness.

        1. We need to stop the fucking madness.

          But we (as a nation) won’t, will we? We are a socialist people (not us, the country at large) or at least a corporatist-fascist-socialist hybrid that loves nothing more than to be entertained. America is happy sitting on it’s stone seat watching the circus eating the free bread and rooting for their favorite team.

          We are almost certainly entering into a totalitarian dark age. I haven’t completely given up, but after watching the actions of the “freest nation of Earth’s” government over the last decade and watching the people alternate between “moar! moar!” and “meh” I’m not optimistic.

  7. Now they know how we feel.

  8. There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane, he had to fly them. If he flew them, he was crazy and didn’t have to; but if he didn’t want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

    1. Where are the Snowdens of yesteryear?

  9. Nothing to see here. Move along.

  10. If the Inter-Galactic Criminal Court dropped by the planet, couldn’t they arrest the Obama Administration?

    1. They could, legally speaking, implant aliens in each official’s stomach that later eat through to escape.

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