Solicitor General Donald B. Verrilli Jr., the Obama administration’s top appellate lawyer, argued that a challenge to a 2008 surveillance law should be dismissed. http://www.nytimes.com/2013/07/16/us/double-secret-surveillance.html?pagewanted=all 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.”
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.
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, 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.
By insisting that they need not disclose whether there had been surveillance under the 2008 law, 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, 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.
However, 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.”
