DOJ Stops Hiding Its Use of Warrantless Wiretaps, Making Constitutional Challenges Possible



The New York Times reports that federal prosecutors will soon inform a defendant that the case against him relies partly on warrantless wireapping authorized by the Foreign Intelligence Surveillance Act (FISA). The disclosure will make it possible to challenge the constitutionality of such snooping in federal court.

Congress amended FISA in 2008 to allow monitoring of communications between Americans and people in other countries without a specific court order, provided the official target is not located on U.S. soil. Last February, in Clapper v. Amnesty International, the Supreme Court dismissed a lawsuit challenging that practice, ruling that the plaintiffs did not have standing to sue because they could not show their phone calls or email had been intercepted. Solicitor General Donald Verrilli had assured the Court there would be other opportunities to consider whether the surveillance is consistent with the Fourth Amendment. "If the government intends to use or disclose any information obtained or derived from its acquisition of a person's communications…in judicial or administrative proceedings," Verrilli said in a July 2012 brief, "it must provide advance notice of that intent to the tribunal and the person." He mentioned that possibility again during oral argument last October. "If an aggrieved person, someone who is a party to a communication, gets notice that the government intends to introduce information in a proceeding against them," he told the Court, "they have standing."

But it turns out federal prosecutors had decided they did not have to provide the notice that Verrilli said was legally required, without which defendants would not know the evidence against them was based on warrantless wiretaps and therefore could not challenge that evidence, contrary to what Verrilli had told the Court. Even though Justice Department lawyers who handle national security cases knew Verrilli was making that argument at the time and did not object, the Times reports, they continued to keep defendants in the dark. Their resistance led to "an internal Justice Department debate" in which Verrilli argued that prosecutors were legally obligated to tell defendants where the government got its evidence. Verrilli won the argument, the upshot being that prosecutors who use information derived from warrantless wiretapping will no longer try to hide that fact. (Or so the anonymous sources cited by the Times claim.)

Ironically, the Justice Department's deceit came to light as a result of a December 2012 speech by Sen. Dianne Feinstein (D-Calif.), a reliable defender of the national security state who chairs the Senate Intelligence Committee. Speaking in favor of extending the 2008 FISA amendments on the Senate floor, Feinstein said (emphasis added):

There is a view by some that this country no longer needs to fear attack. I don't share that view, and I have asked the intelligence committee staff to compile arrests that have been made in the last four years in America on terrorist plots that have been stopped. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly just review what these plots were, and some of them come right from this programThe information came right from this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases.

 First, in November, one month ago, two arrests for conspiracy to provide material support to terrorists and use a weapon of mass destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They were arrested by the FBI in Fort Lauderdale, Florida. The next case is another conspiracy to provide material support. Arrested were Ralph Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali. These three men were planning to travel to Afghanistan to attend terrorist training and commit violent jihad; third, was a plot to bomb the New York Federal Reserve Bank; fourth, a plot to bomb a downtown Chicago bar; fifth, a conspiracy to provide material support to the Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack against the U.S. Capitol in February of 2012; seventh, a plot to bomb locations in Tampa, Florida; eighth, a plot to bomb New York City targets and troops returning from combat overseas; ninth, a plot to assassinate the Saudi Ambassador to the United States; and it goes on and on and on.

 So I believe the FISA Amendments Act is important, and these cases show the program has worked.

In response to these comments, lawyers for the defendants in two of the cases Feinstein mentioned contacted federal prosecutors to ask if they were using evidence from warrantless wiretaps. The prosecutors said they were not required to disclose that information. After a June 7 story in the Times noted the position the Justice Department was taking, Verrilli started to ask questions, wondering why no one had mentioned it when he was arguing Clapper v. Amnesty International and why federal prosecutors seemed intent on making a liar out of him.

Speaking of liars, a lawyer for the Senate Intelligence Committee insisted in a September 16 letter to one of the defense attorneys that Feinstein never meant to suggest that the FISA amendments she was defending had anything to do with the terrorism cases she mentioned:

Notwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including Mr. Daoud's case, in which terrorist plots had been stopped….

Nothing in Senator Feinstein's remarks was intended to convey any view that FAA authorities were used or were not used in Mr. Daoud's case or in any of the other cases specifically named. Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack."

To recap: Feinstein said warrantless wiretaps are essential in foiling terrorist plots and listed nine specific cases, followed immediately by the conclusion that "the FISA Amendments Act is important, and these cases show the program has worked." But she did not mean to imply that these cases show the program has worked.