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

https://www.documentcloud.org/documents/837839-112013-clapper-v-amnesty-letter-1.html

by revelation • 13 years ago

356 91 13 years ago

rayiner6• 13 years 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."

girvo2• 13 years 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• 13 years ago

Maybe, sense of justice? :)

olefoo• 13 years 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• 13 years 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.m...

Additional details: http://thecaucus.blogs.nytimes.com/2012/04/24/justice-depart...

notatoad• 13 years ago

politely asking for a formal admission of wrongdoing counts as "not fucking around" now? how about some actual punishments or any sort of deterrent to more of this sort of behaviour?

Shivetya• 13 years ago

Show me where the current DOJ is held accountable,when you can hide behind the politics of identity, have a complacent if not complicit press, where does justice come from?

rhizome4• 13 years ago

Two questions, two answers:

1) There's a such thing as decorum.

2) One step at a time. "The mill of justice grinds slowly, but it grinds exceedingly fine."

wpietri• 13 years ago

I once got to see a federal judge tear a plaintiff's lawyer a new one. I sat through the whole trial, and up until the judge was mid-way through his ruling, I had no idea which way he was going to rule. But suddenly I realized, despite the measured prose of the decision and the unraised voice reading it, that the judge was pissed. He felt the whole thing was a giant waste of time, and that any lawyer who wasn't a complete fuckup would have kept the case from turning up in his courtroom. And it wasn't just me that realized it; we all watched the plaintiff's lawyer slowly wilt.

It was an incredible thing to watch. The formality of the occasion, the power of the judge, the power of the system he represented, the normal range of courtroom expression: they all set a context in which a slightly raised eyebrow was more powerful than the loudest shout, that arch deprecation was more cutting than a raft of verbal abuse.

I expect it's the same deal here. These are US Senators asking, and they're basically, in polite language, making direct accusations of lying to the Supreme Court. I suspect that they, mindful of the co-equal status of the government branches, very rarely say things like this. So when they do, everybody knows that they mean it.

DanielBMarkham2• 13 years ago

Read the questions at the end. The letter isn't fucking around:

Huh?

They wrote a letter. With polite suggestions.

I like the letter, and I'm happy to see many more letters like this. Heck, I might write my own letter. But you are spinning this.

rayiner6• 13 years ago

When a Senator says he'd "appreciate" your answers to some questions, that's not a polite suggestion, nor is there anything polite about basically saying: "We think stopping beating your wife would be an important step toward..."

larrys3• 13 years ago

Agree.

In actual practice this is a form of grandstanding.

If you've ever tried to enlist the help of a legislator they will do all sorts of things that on the surface appear to have teeth.

In the end if they can't get a majority to agree with them nothing happens.

They will write the bill but if they can't get the votes your petty little issue dies.

But they always put on a good show. The question is whether they are willing to go to the mat for you and/or make a trade (of something someone else thinks is important) to get the votes.

Also whether the press runs with it and thinks it is important which depends on not only whether the press thinks it's important but whether they can see that others who are important also agree.

toufka2• 13 years ago

A nice literal example of why the US has three separate, adversarial branches of government. When one gets a bit full of itself the other two have time to band together to put the offender in its place before it can become truly dominant.

Also, this is the most important part of this entire scenario - not the spying, not the secrecy, not the internets, but the executive overreach. The use of spying and secrecy to gain tremendous power (including over the other branches of government). The ability for the executive to grab enough power to coopt the legislature and deceive the courts - and get away with it. Were that to have actually come to pass little else would have been important. It's intriguing and relevant (for us) that this overreach was made possible by the knowledge gap generated by rapidly advancing technology - 'trust us, we'll get the bad guys with this newfangled technology stuff like twitters and facebooks'. But in the end, it's just a power-grab.

VladRussian22• 13 years ago

The ability for the executive to grab enough power to coopt the legislature and deceive the courts - and get away with it. Were that to have actually come to pass little else would have been important. It's intriguing and relevant (for us) that this overreach was made possible by the knowledge gap generated by rapidly advancing technology

while it make the events relevant to this audience, the technology involvement is a red-herring here as history is full of examples where executive branch was able to perform the power-grab utilizing the technology of the time, frequently an absolute power-grab and with wide popular support in the name of "the greater good" as perceived at the time by the populace. In its current form technology allows to minimize direct violence required to perform the grab, it allows to stretch and smooth the shock of the transition.

atmosx• 13 years ago

Exactly. I'd like to see that in Greece, but we never actually became a modern democracy with clear separation of powers.

baddox• 13 years ago

The problem with separation of powers is that there is no appreciable difference in the incentives of the three branches and thus little reason for them to actually "put another branch in its place."

fleitz2• 13 years 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.

girvo2• 13 years ago

Would be rather fitting, considering "Treason! Burn him at the stake!" was the battle-cry for some of the politicians in regards to Snowden's actions.

fleitz2• 13 years ago

That was why I proposed something so ridiculous.

rayiner6• 13 years ago

Let's not go there: 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.

blahbl4hblahtoo2• 13 years ago

Isn't this due to treason being interpreted as providing an enemy with information or assistance during a declared war?

latj2• 13 years 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?

icambron• 13 years ago

I wholeheartedly agree about treason, but perjury is a perfectly reasonable thing to charge people with here. And it's a plenty serious crime. For non-immune people, it means jail time. For the president, it's good grounds for impeachment.

dragonwriter6• 13 years ago

The kind of wishes people have about "I don't like it --> should be treason!" is one of the reasons that the US has a narrow definition of treason enshrined in the Constitution.

Plus, no, it wouldn't: the President is both immune to criminal prosecution while in office and has plenary power to pardon, so "someone could make a treason case out of it" wouldn't constrain executive abuses. The only thing that constrains those is a public that cares enough to extract a price for the abuses, starting with public outcry and action at the ballot box.

dllthomas3• 13 years ago

The President could be impeached and then tried.

Which is not to say I think it's a good idea.

pyre• 13 years ago

If a President can pardon his- or herself, then why was Nixon pardoned by Gerald Ford? Why didn't Nixon just pardon himself before resigning? Why wasn't he immune by definition?

camus2• 13 years ago

if it was possible all the Bush jr administration would be in jail.

tsaoutourpants• 13 years 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• 13 years 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• 13 years 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

rschulman• 13 years 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• 13 years 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.

jstalin2• 13 years 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• 13 years 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?

jstalin2• 13 years 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.

dragonwriter6• 13 years 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.

rayiner6• 13 years 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/....

DannyBee3• 13 years 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...

"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."

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• 13 years 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.

revelation• 13 years ago

There is a level of importance where "not being aware" or "not intentionally misleading" stops being acceptable. It simply doesn't matter if you lied intentionally or due to plain and simple incompetence.

w1ntermute• 13 years 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• 13 years 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.

gizmo6862• 13 years 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• 13 years 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.

zcarter• 13 years 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?

VladRussian22• 13 years 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• 13 years ago

Warm Regards

mvanga• 13 years ago

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

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

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