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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

by 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.

by Zikes 13y ago

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.