10 ms·

DOJ lied to Supreme Court to avoid judicial review of warrantless surveillance

356 points by revelation 13y ago

jstalin 13y ago
I know the words "ethics" and "lawyers" don't generally enters people's minds at the same time, but the model rules of ethics for lawyers take this sort of thing seriously. If the Senators show that some lawyers did indeed lie to the Supreme Court, the Court itself could take action on those attorneys' licenses. It's also a lawyer's duty to report if they are aware of another attorney's violations of ethical rules. I know it's doubtful, but one can hope.
Zikes 13y ago
This sounds important, but I'm at a loss as to its significance. What was Clapper v Amnesty? It sounds like Solicitor General Verrilli made a lie of omission in the court. Is that considered a lie under oath? What obligation does Solicitor General Verrilli have to the three Senators to answer their questions? What consequences might he face if he choose to ignore the letter? Realistically, what could this mean for the original Clapper v Amnesty case, and how might it affect the public in general?
- jstalin 13y ago
  Basically it was a case where people thought they were being spied on by the NSA, but couldn't prove it. They wanted to bring suit to force the NSA to admit that they were spying. The court said that because they had no evidence they were being spied on, they didn't have standing to bring the suit. Yes, I know, circular logic.
  - dragonwriter 13y ago
    Actually, the important thing is that the court said that part of the reason for its decisions was that there would be an effective remedy in the case that the allegedly-improper spying was used in criminal prosecution, because the government would disclose that the spying had occurred, at which point it could be challenged. The whole issue of the letter is that the representations made by the government to the Court on which it relied in finding that there was a remedy available at a later point which would be more appropriate were not true.
    - pflats 13y ago
      The loophole in the first part, of course, is that once you've spied on them, it's often straightforward enough to backtrack out a legal vector to investigate the target, and "discover" the information you already knew. And then you take that poisonous tree out back, burn it to the ground, and never mention spying anywhere in your case. (As an aside, dragonwriter, your posts throughout topic have been outstandingly helpful. Thanks.)
      - rhizome 13y ago
        it's often straightforward enough to backtrack out a legal vector to investigate the target, and "discover" the information you already knew This is the general idea behind the technique of Parallel Construction.
      - dragonwriter 13y ago
        > The loophole in the first part, of course, is that once you've spied on them, it's often straightforward enough to backtrack out a legal vector to investigate the target, and "discover" the information you already knew. I agree that that's a problem with the original decision even beyond taking the government's representation at face value (and, really, a fundamental problem with the general approach that the exclusionary rule is usually the exclusive remedy for illegal search and seizure, which goes far beyond just the NSA electronic surveillance issue.)
- rayiner 13y ago
  Clapper v. Amnesty International was a case which held that Amnesty International lacked standing to challenge parts of FISA and the FISA Amendments Act. The touchstone for standing is showing that you have actually been harmed by someone's action. Standing ensures that the people actually harmed by an action bring suit, so that people can't sue for theoretical violations of the law. The Supreme Court concluded that the injury in this case was speculative, based on the hypothetical possibility that a member of Amnesty International was in contact with someone who was targeted. The essence of Udall et al.'s letter is that the DOJ's representations to the Supreme Court suggested that the only way a U.S. person's (e.g. a member of Amnesty International) communications could get collected was if they were in contact with some foreign person who was targeted. Ergo, the Supreme Court's analysis was based on an incomplete understanding of the ways in which a U.S. person's communications could be collected, and therefore an incomplete understanding of how a member of Amnesty International's communications could be collected. Solicitor general Verrilli must answer Congress's questions. I'm not quite sure what Verrilli's obligation to answer is at this stage. As a general rule, you don't want to ignore letters from Senators on Senate letterhead. Committees of the Senate do have inquiry powers and subpoena powers to force you to answer questions if you don't do so willingly. See: http://www.senate.gov/artandhistory/history/common/briefing/Investigations.htm http://www.senate.gov/artandhistory/history/common/briefing/....
- DannyBee 13y ago
  "It sounds like Solicitor General Verrilli made a lie of omission in the court. Is that considered a lie under oath? " Actually, AFAIK, this is incorrect. I'm trying to find a later article i read a few days ago, but apparently Verrilli was not aware of any of this when he made statements at oral argument, and once he became aware, he fought a large internal fight to make sure his statements about giving defendants evidence stayed accurate. Ah, here we go. At least for the first part of what I said, see http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-challenge-to-secret-wiretaps.html http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift... "The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said." (and about the oral argument prep failure here) "As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials." So A. It seems he wasn't aware B. Once he was aware, he put a stop to the practice. Now, this doesn't excuse any of what has happened here, but as far as anyone knows, he didn't intentionally mislead anyone. Note that unlike a lot of folks involved in all of this, Donald Verrilli is the least likely to be involved in anything hinky or lie to a court. He's a true believer in the system.
  - zaroth 13y ago
    How else would you expect Verrelli to explain what happened once it became obvious what he told the Supreme Court was not true? It's the solicitor general's responsibility, as it is anyman's responsibility when testifying in court, to ensure his testimony is accurate. He didn't say, "as far as I know, this is what I think we might collect." The Government made a persuasive argument that collection was limited specifically to the extent required to dismiss the case. This was not an honest mistake, it was a material misrepresentation of fact. There is no plausible deniability here. I think it's appropriate to discuss what the ramifications should be, but it's naive to think Verrilli was not aware. I think it's also reasonable to question whether Chief Justice Roberts was also aware Verrilli was shoveling shit, seeing as how he appointed every judge currently serving on the FISA court.
w1ntermute 13y ago
Unless some high-level DoJ and NSA officials are thrown in jail for a couple decades for all this, it's not going to stop.
- ScottBurson 13y ago
  I'm not sure that matters very much. It will stop when Congress votes to defund it. As long as it's perceived as the will of the American people, as expressed through their elected representatives, it will continue. Alas, I see no sign that Dianne Feinstein is likely to lose an election anytime soon.
  - gizmo686 13y ago
    The problem being discussed is individuals lying to the supreme court. Congress (to my knowledge) has never authorized anyone to lie SCOTUS. What is happening is that is that these institutions are getting away with lieing to the Judicial branch, because the Judicial branch is letting them. If there happens to be something in the law authorizing people to lie to SCOTUS, then I suspect SCOTUS could strike that part of the law down.
salient 13y ago
Don't expect Holder the Untouchable to ever be punished for this. At this point I think he's more untouchable than even "Emperor Alexander", the current (and soon former) chief of NSA.
rayiner 13y ago
Read the questions at the end. The letter isn't fucking around: "We believe that a formal notification to the Supreme Court of the government's misrepresentations in the case--both relating to its notice policy and relating to its practice of 'about' collection under Section 702 of the FISA Amendments Act--woulcl be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court."
- girvo 13y ago
  I love reading to-the-point "legal" stuff. When I did my law degree, the old-school cases were the best for it. Schadenfreude, or something, I guess.
  - sp332 13y ago
    Maybe, sense of justice? :)
- olefoo 13y ago
  This is pretty unprecedented is it not? I don't think there's ever been a case where the DOJ was caught with it's hands this dirty before.
  - jakewalker 13y ago
    In 2012, the DOJ had to send a letter to the Supreme Court to admit misstatements made in its briefing in an immigration case: http://www.justice.gov/osg/briefs/2008/3mer/2mer/2008-0681.mer.sup.pdf.pdf http://www.justice.gov/osg/briefs/2008/3mer/2mer/2008-0681.m... Additional details: http://thecaucus.blogs.nytimes.com/2012/04/24/justice-department-submits-correction-letter-to-supreme-court/ http://thecaucus.blogs.nytimes.com/2012/04/24/justice-depart...
    - nknighthb 13y ago
      The Nken case seems like an overconfident description by a lawyer of various informal policies and practices that together point fuzzily in one direction. Clapper seems rather less ambiguous.
fleitz 13y ago
I wish someone could make a treason case out of perjury in relation to a matter of national security during a time of war for these actions. This crap would stop pretty fast.
- rayiner 13y ago
  Let's not go there: http://www.heritage.org/constitution/#!/articles/3/essays/119/treason http://www.heritage.org/constitution/#!/articles/3/essays/11.... The U.S. hasn't convicted someone of treason for more than half a century. Even John Walker Lindh, who was literally fighting with the enemy against the U.S., was not prosecuted for treason.
  - blahbl4hblahtoo 13y ago
    Isn't this due to treason being interpreted as providing an enemy with information or assistance during a declared war?
    - dragonwriter 13y ago
      > Isn't this due to treason being interpreted as providing an enemy with information or assistance during a declared war? Its probably because of the narrow definition of treason written explicitly into the Constitution [1]. [1] http://www.law.cornell.edu/constitution/articleiii#section3 http://www.law.cornell.edu/constitution/articleiii#section3
      - blahbl4hblahtoo 13y ago
        cheers. thanks.
  - latj 13y ago
    Ok fine, but can we at least fire people who lie to Congress and then admit it? What is the point of Congress asking questions if you are allowed to testify in the least untruthful ways?
tsaoutourpants 13y ago
These three Senators have realized that they can capitalize on public sentiment against the NSA. Good on them... that's what representing the people is about.
- intslack 13y ago
  Ron Wyden and Mark Udall have been talking about it for years; Ron Wyden in particular went to the floor of the senate and talked about how the American people would be shocked if they knew how the PATRIOT Act was being interpreted.
  - MysticFear 13y ago
    Not to mention Wyden was the one who asked James Clapper the questions that lead him to lie to Congress. Still have no idea why Clapper still holds his position. http://www.youtube.com/watch?v=nsmo0hUWJ08&t=33s http://www.youtube.com/watch?v=nsmo0hUWJ08&t=33s
    - CamperBob2 13y ago
      Do some reading about J. Edgar Hoover and you'll understand why Clapper still holds his position.
- rschulman 13y ago
  At least two of these three senators have been yelling into the wind about NSA abuses for around a decade. But sure, jump on to the Internet and spout nonsense if it makes you feel better about your government turning into a surveillance state.
- pilom 13y ago
  I'm a big Udall supporter and I have to say that I wish you were right about them trying to capitalize on this but its as if Senator Udall makes a point of NOT mentioning his positions on this issue in his reelection campaigning. He probably has pollsters who tell him this isn't the stuff to emphasize but I wish he made a bigger deal of it at home. That being said, this letter has pushed me over the edge for making a large contribution to his campaign.
zcarter 13y ago
Lawyers: What precedent is there for supreme court decisions citing a specific piece of evidence as the basis for their ruling, where that piece of evidence is later shown to be erroneous?
VladRussian2 13y ago
just to put things in perspective - is is any surprise that people who is ok with torture would lie? Why would someone expect it different?
adultSwim 13y ago
Warm Regards
mvanga 13y ago
Would someone be willing to provide the background, interpretation and ramifications of this document for someone not very familiar with this case?

356 points by revelation 13y ago

I know the words "ethics" and "lawyers" don't generally enters people's minds at the same time, but the model rules of ethics for lawyers take this sort of thing seriously. If the Senators show that some lawyers did indeed lie to the Supreme Court, the Court itself could take action on those attorneys' licenses. It's also a lawyer's duty to report if they are aware of another attorney's violations of ethical rules. I know it's doubtful, but one can hope.

Zikes 13y ago

This sounds important, but I'm at a loss as to its significance. What was Clapper v Amnesty? It sounds like Solicitor General Verrilli made a lie of omission in the court. Is that considered a lie under oath? What obligation does Solicitor General Verrilli have to the three Senators to answer their questions? What consequences might he face if he choose to ignore the letter? Realistically, what could this mean for the original Clapper v Amnesty case, and how might it affect the public in general?

jstalin 13y ago
Basically it was a case where people thought they were being spied on by the NSA, but couldn't prove it. They wanted to bring suit to force the NSA to admit that they were spying. The court said that because they had no evidence they were being spied on, they didn't have standing to bring the suit. Yes, I know, circular logic.
- dragonwriter 13y ago
  Actually, the important thing is that the court said that part of the reason for its decisions was that there would be an effective remedy in the case that the allegedly-improper spying was used in criminal prosecution, because the government would disclose that the spying had occurred, at which point it could be challenged. The whole issue of the letter is that the representations made by the government to the Court on which it relied in finding that there was a remedy available at a later point which would be more appropriate were not true.
  - pflats 13y ago
    The loophole in the first part, of course, is that once you've spied on them, it's often straightforward enough to backtrack out a legal vector to investigate the target, and "discover" the information you already knew. And then you take that poisonous tree out back, burn it to the ground, and never mention spying anywhere in your case. (As an aside, dragonwriter, your posts throughout topic have been outstandingly helpful. Thanks.)
    - rhizome 13y ago
      it's often straightforward enough to backtrack out a legal vector to investigate the target, and "discover" the information you already knew This is the general idea behind the technique of Parallel Construction.
    - dragonwriter 13y ago
      > The loophole in the first part, of course, is that once you've spied on them, it's often straightforward enough to backtrack out a legal vector to investigate the target, and "discover" the information you already knew. I agree that that's a problem with the original decision even beyond taking the government's representation at face value (and, really, a fundamental problem with the general approach that the exclusionary rule is usually the exclusive remedy for illegal search and seizure, which goes far beyond just the NSA electronic surveillance issue.)
rayiner 13y ago
Clapper v. Amnesty International was a case which held that Amnesty International lacked standing to challenge parts of FISA and the FISA Amendments Act. The touchstone for standing is showing that you have actually been harmed by someone's action. Standing ensures that the people actually harmed by an action bring suit, so that people can't sue for theoretical violations of the law. The Supreme Court concluded that the injury in this case was speculative, based on the hypothetical possibility that a member of Amnesty International was in contact with someone who was targeted. The essence of Udall et al.'s letter is that the DOJ's representations to the Supreme Court suggested that the only way a U.S. person's (e.g. a member of Amnesty International) communications could get collected was if they were in contact with some foreign person who was targeted. Ergo, the Supreme Court's analysis was based on an incomplete understanding of the ways in which a U.S. person's communications could be collected, and therefore an incomplete understanding of how a member of Amnesty International's communications could be collected. Solicitor general Verrilli must answer Congress's questions. I'm not quite sure what Verrilli's obligation to answer is at this stage. As a general rule, you don't want to ignore letters from Senators on Senate letterhead. Committees of the Senate do have inquiry powers and subpoena powers to force you to answer questions if you don't do so willingly. See: http://www.senate.gov/artandhistory/history/common/briefing/Investigations.htm http://www.senate.gov/artandhistory/history/common/briefing/....
DannyBee 13y ago
"It sounds like Solicitor General Verrilli made a lie of omission in the court. Is that considered a lie under oath? " Actually, AFAIK, this is incorrect. I'm trying to find a later article i read a few days ago, but apparently Verrilli was not aware of any of this when he made statements at oral argument, and once he became aware, he fought a large internal fight to make sure his statements about giving defendants evidence stayed accurate. Ah, here we go. At least for the first part of what I said, see http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-challenge-to-secret-wiretaps.html http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift... "The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said." (and about the oral argument prep failure here) "As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials." So A. It seems he wasn't aware B. Once he was aware, he put a stop to the practice. Now, this doesn't excuse any of what has happened here, but as far as anyone knows, he didn't intentionally mislead anyone. Note that unlike a lot of folks involved in all of this, Donald Verrilli is the least likely to be involved in anything hinky or lie to a court. He's a true believer in the system.
- zaroth 13y ago
  How else would you expect Verrelli to explain what happened once it became obvious what he told the Supreme Court was not true? It's the solicitor general's responsibility, as it is anyman's responsibility when testifying in court, to ensure his testimony is accurate. He didn't say, "as far as I know, this is what I think we might collect." The Government made a persuasive argument that collection was limited specifically to the extent required to dismiss the case. This was not an honest mistake, it was a material misrepresentation of fact. There is no plausible deniability here. I think it's appropriate to discuss what the ramifications should be, but it's naive to think Verrilli was not aware. I think it's also reasonable to question whether Chief Justice Roberts was also aware Verrilli was shoveling shit, seeing as how he appointed every judge currently serving on the FISA court.

w1ntermute 13y ago

Unless some high-level DoJ and NSA officials are thrown in jail for a couple decades for all this, it's not going to stop.

ScottBurson 13y ago
I'm not sure that matters very much. It will stop when Congress votes to defund it. As long as it's perceived as the will of the American people, as expressed through their elected representatives, it will continue. Alas, I see no sign that Dianne Feinstein is likely to lose an election anytime soon.
- gizmo686 13y ago
  The problem being discussed is individuals lying to the supreme court. Congress (to my knowledge) has never authorized anyone to lie SCOTUS. What is happening is that is that these institutions are getting away with lieing to the Judicial branch, because the Judicial branch is letting them. If there happens to be something in the law authorizing people to lie to SCOTUS, then I suspect SCOTUS could strike that part of the law down.

salient 13y ago

Don't expect Holder the Untouchable to ever be punished for this. At this point I think he's more untouchable than even "Emperor Alexander", the current (and soon former) chief of NSA.

rayiner 13y ago

Read the questions at the end. The letter isn't fucking around: "We believe that a formal notification to the Supreme Court of the government's misrepresentations in the case--both relating to its notice policy and relating to its practice of 'about' collection under Section 702 of the FISA Amendments Act--woulcl be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court."

girvo 13y ago
I love reading to-the-point "legal" stuff. When I did my law degree, the old-school cases were the best for it. Schadenfreude, or something, I guess.
- sp332 13y ago
  Maybe, sense of justice? :)
olefoo 13y ago
This is pretty unprecedented is it not? I don't think there's ever been a case where the DOJ was caught with it's hands this dirty before.
- jakewalker 13y ago
  In 2012, the DOJ had to send a letter to the Supreme Court to admit misstatements made in its briefing in an immigration case: http://www.justice.gov/osg/briefs/2008/3mer/2mer/2008-0681.mer.sup.pdf.pdf http://www.justice.gov/osg/briefs/2008/3mer/2mer/2008-0681.m... Additional details: http://thecaucus.blogs.nytimes.com/2012/04/24/justice-department-submits-correction-letter-to-supreme-court/ http://thecaucus.blogs.nytimes.com/2012/04/24/justice-depart...
  - nknighthb 13y ago
    The Nken case seems like an overconfident description by a lawyer of various informal policies and practices that together point fuzzily in one direction. Clapper seems rather less ambiguous.

fleitz 13y ago

I wish someone could make a treason case out of perjury in relation to a matter of national security during a time of war for these actions. This crap would stop pretty fast.

rayiner 13y ago
Let's not go there: http://www.heritage.org/constitution/#!/articles/3/essays/119/treason http://www.heritage.org/constitution/#!/articles/3/essays/11.... The U.S. hasn't convicted someone of treason for more than half a century. Even John Walker Lindh, who was literally fighting with the enemy against the U.S., was not prosecuted for treason.
- blahbl4hblahtoo 13y ago
  Isn't this due to treason being interpreted as providing an enemy with information or assistance during a declared war?
  - dragonwriter 13y ago
    > Isn't this due to treason being interpreted as providing an enemy with information or assistance during a declared war? Its probably because of the narrow definition of treason written explicitly into the Constitution [1]. [1] http://www.law.cornell.edu/constitution/articleiii#section3 http://www.law.cornell.edu/constitution/articleiii#section3
    - blahbl4hblahtoo 13y ago
      cheers. thanks.
- latj 13y ago
  Ok fine, but can we at least fire people who lie to Congress and then admit it? What is the point of Congress asking questions if you are allowed to testify in the least untruthful ways?

tsaoutourpants 13y ago

These three Senators have realized that they can capitalize on public sentiment against the NSA. Good on them... that's what representing the people is about.

intslack 13y ago
Ron Wyden and Mark Udall have been talking about it for years; Ron Wyden in particular went to the floor of the senate and talked about how the American people would be shocked if they knew how the PATRIOT Act was being interpreted.
- MysticFear 13y ago
  Not to mention Wyden was the one who asked James Clapper the questions that lead him to lie to Congress. Still have no idea why Clapper still holds his position. http://www.youtube.com/watch?v=nsmo0hUWJ08&t=33s http://www.youtube.com/watch?v=nsmo0hUWJ08&t=33s
  - CamperBob2 13y ago
    Do some reading about J. Edgar Hoover and you'll understand why Clapper still holds his position.
rschulman 13y ago
At least two of these three senators have been yelling into the wind about NSA abuses for around a decade. But sure, jump on to the Internet and spout nonsense if it makes you feel better about your government turning into a surveillance state.
pilom 13y ago
I'm a big Udall supporter and I have to say that I wish you were right about them trying to capitalize on this but its as if Senator Udall makes a point of NOT mentioning his positions on this issue in his reelection campaigning. He probably has pollsters who tell him this isn't the stuff to emphasize but I wish he made a bigger deal of it at home. That being said, this letter has pushed me over the edge for making a large contribution to his campaign.

zcarter 13y ago

Lawyers: What precedent is there for supreme court decisions citing a specific piece of evidence as the basis for their ruling, where that piece of evidence is later shown to be erroneous?

VladRussian2 13y ago

just to put things in perspective - is is any surprise that people who is ok with torture would lie? Why would someone expect it different?

adultSwim 13y ago

Warm Regards

mvanga 13y ago

Would someone be willing to provide the background, interpretation and ramifications of this document for someone not very familiar with this case?