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The Solicitor General Should Correct the Record in Clapper

In yesterday’s New York Times, Charlie Savage confirmed something we’ve suspected for some time—that until very recently the Justice Department was failing to provide statutorily required notice to defendants prosecuted with evidence acquired under the FISA Amendments Act. Apparently the DOJ has now corrected its policy, but its past failure to provide notice to defendants who were entitled to it is likely to generate a slew of habeas and suppression motions in closed and ongoing cases. It also raises questions about representations the government made in Clapper v. Amnesty, a case that the Supreme Court decided earlier this year. Confronted with a similar situation recently in Nken v. Holder, the Solicitor General’s Office submitted a letter to the Supreme Court acknowledging and explaining representations that turned out to be inaccurate.  The Solicitor General’s Office should do likewise in Clapper.

In Clapper, the ACLU challenged the constitutionality of the FAA on behalf of a coalition of human rights, media, labor, and legal organizations. In a 5-4 vote, the Supreme Court held that the plaintiffs lacked standing to challenge the law because they couldn’t prove that their communications had been monitored under it. (This was before it became clear that virtually everyone’s communications are being monitored under the law.) The plaintiffs had urged the Court not to accept the government’s restrictive theory of standing, arguing that accepting it would effectively insulate the statute from judicial review. In response to this argument, the government told the Court that the statute’s constitutionality would be reviewed in the context of criminal prosecutions. Here’s what the government’s said in its reply brief to the Court:

[T]he government must provide advance notice of its intent to use information obtained or derived from [FAA]-authorized surveillance against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance.

The Solicitor General said essentially the same thing at oral argument before the Supreme Court, and the Court ultimately relied on his representations. Indeed, Justice Alito’s opinion for the majority repeated almost verbatim the government’s assurance that criminal defendants would receive notice of FAA-derived evidence and the opportunity to challenge the Act’s constitutionality:

If the Government intends to use or disclose information obtained or derived from a [FAA] acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.

Savage’s article makes clear that the Justice Department in fact had a very different policy. Rather than provide defendants with notice, the Justice Department’s National Security Division (NSD) was routinely concealing the role of the FAA, denying defendants the opportunity to move to suppress FAA-derived evidence, and preventing trial courts from adjudicating the FAA’s constitutionality.

The Solicitor General did not know any of this at the time. He apparently learned of it only after the Supreme Court decided Clapper, when some criminal defendants filed motions seeking the notice that had not been provided to them and the New York Times published articles raising the question whether the government’s representations to the Court in Clapper had been accurate. When it became clear to the Solicitor General that the National Security Division’s notice policy was quite different from the one he had described to the Court, he prevailed on the Division to change its policy. Ultimately, lawyers from multiple agencies sided with the Solicitor General in this dispute, concurring in his conclusion “that withholding disclosure from defendants could not be justified legally.”

The Solicitor General acted commendably in endeavoring to change the National Security Division’s notice policy. The policy was indefensible both as a statutory matter and a constitutional one. (For one legal analysis of the issue, see this brief.) But the Solicitor General’s work is not done. He should now submit a letter-brief alerting the Court to the significant factual error in the government’s submissions. His letter should explain what the NSD’s notice policy was when Clapper was before the courts; on what basis the NSD came to the conclusion that the policy was justified; how it came to pass that the government misrepresented the NSD’s policy; and what the NSD’s notice policy is now.

It would be unusual for the government to file such a letter, but it would not be unprecedented. In fact the Solicitor General’s Office filed a letter of this kind just last year. Nken v. Holder concerned the circumstances in which a federal court could postpone a deportation order while a non-citizen challenged the legal basis for his or her removal. The government argued that the non-citizen would not suffer “irreparable injury” if deported while his or her litigation was still ongoing because it had a “policy and practice” of facilitating aliens’ return to the United States if they prevailed in court. The Supreme Court credited this argument in its opinion. Later, as a result of FOIA litigation, it became evident that the government had overstated its case in Nken and that its submissions had “suggested a more formal and structured process than existed at the time.” The Solicitor General’s Office filed a letter with the Court acknowledging that its submissions had been inaccurate, documenting its internal efforts to identify and address the inaccuracies, and reaffirming the Justice Department’s duty of candor in all of its dealings with the Court.

The case for a letter to the Court is stronger here than it was in Nken. The misrepresentation here was not merely one of degree—rather, the government told the Court that it was providing notice when in fact it was not. And the misrepresentation here related to a subject on which the public’s confidence in the integrity and candor of government officials is at a generational low. Formally alerting the Court to the government’s misrepresentation would serve the interests of the public, the executive, and the Courts. The Solicitor General should correct the record.

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About the Authors

is Deputy Legal Director at the American Civil Liberties Union and Director of the ACLU’s Center for Democracy. Follow him on twitter @JameelJaffer.

is a Staff Attorney at the ACLU National Security Project.