In yesterday’s New York Times, Charlie Savage had a new installment in his series about the government’s representations (and misrepresentations) in Clapper v. Amnesty, a case I argued before the Supreme Court in 2012. (For previous installations in Savage’s series, see here, here, here, here, and here.) In connection with yesterday’s article, Savage has posted a letter that the Justice Department sent to Senator Udall in December 2013 and a reply that Senators Udall and Wyden sent to the Solicitor General two days ago.
A few reactions:
First, the senators are certainly justified in raising questions about some of the government’s representations in the case. The government’s briefs, not just in the Supreme Court but in the lower courts as well, gave the impression that the FISA Amendments Act was narrow, that the NSA was interpreting it narrowly, and that the plaintiffs’ fears that their communications would be monitored under the statute were overstated and even fantastical. The government would certainly not have been able to make any of those arguments if the public and the Court had known then what they know now.
Second, the Justice Department’s argument that it didn’t have the option of providing the courts with more complete information is not compelling. If the government had wanted to supply the courts with classified information about the NSA’s surveillance practices, it would have been easy enough for it to do so in a sealed filing.
More fundamentally, the government’s interpretation of the FISA Amendments Act—and, in particular, its theory that the Act permits the practice of “about” surveillance—is legal analysis, not a source or method, and it should not have been classified in the first place. (If you don’t know what I’m talking about when I refer to “’about’ surveillance,” see pages 21-25 of this testimony.)What’s said to have been classified is the meaning of certain key terms in the statute—among them, the term “target”—as those terms had been interpreted and implemented by the executive and (apparently) judicial branches. There is something troubling, to say the least, in classifying such an interpretation so as to leave the public with the impression that a statute authorizes one thing while proceeding behind closed doors as if the statute authorizes something quite different.
Third, the Justice Department is wrong to say that the Amnesty plaintiffs’ theory was that they communicated with the government’s likely surveillance targets. This was certainly a part of the plaintiffs’ theory, but it wasn’t the entirety of it. Here’s the relevant paragraph of the Complaint (with my italics): “Because of the scope of the challenged law, the nature of their communications, and the location and identities of the individuals with whom they communicate, plaintiffs reasonably believe that their communications will be acquired, retained, analyzed, and disseminated under the challenged law.” The core of plaintiffs’ concern was that the statute permitted dragnet surveillance. And it turns out that the government was in fact engaged in a form of dragnet surveillance.
Fourth, the Justice Department’s argument that the case would have unfolded the same way even if the government had disclosed that the NSA was engaged in “about” surveillance is also unpersuasive. The Justice Department writes that “[i]t would have been equally speculative for the plaintiffs to assert that their communications with other non-targeted individuals were likely being acquired based on the possibility that those communications included an identifier . . . associated with persons they conjectured might be foreign targets of Section 702.” But if the government had disclosed its practice of “about” surveillance, the Amnesty plaintiffs would have argued that they had standing not because (or not merely because) their communications were being “acquired,” but because their communications were being scanned or monitored through the practice of “about” surveillance. The Justice Department’s letter presumes that plaintiffs’ would not have been able to satisfy the standing requirement merely by demonstrating that their communications were subject to “about” surveillance, but this was surely an issue for the courts, not the Justice Department, to decide.
Finally, the Justice Department is wrong when it says that it made no misrepresentation relating to its practice of providing (or not providing) notice to criminal defendants. The Justice Department says its “statement of the law” relating to the notice requirement was “accurate,” but at the time it made that statement, it wasn’t complying with the law. Defendants who were entitled to notice weren’t being given it. And the Court based its decision on the government’s representation that defendants who were entitled to notice were being given it.
As I said to Savage, I don’t think the Justice Department comes off very well in this exchange of letters. The exchange only underscores the extent to which the government was able to exploit the secrecy surrounding the government’s construction and use of the law. Patrick Toomey and I wrote a few months ago that the government should “correct the record” in the Supreme Court. The two letters published by the New York Times yesterday make it clearer still that the government should do exactly that. As the senators write, “the way to end [the] culture of misinformation and restore the public trust is to acknowledge inaccurate statements when they are made.”