Thursday, October 17, 2013
The Department of Justice will tell a criminal defendant in coming weeks that evidence used against him derived from eavesdropping, The New York Times reports. The disclosure--the first in a criminal case--will give the defendant standing to challenge the government's authority under the Foreign Intelligence Surveillance Act to conduct surveillance against non-U.S. persons outside the United States, even when they're communicating with people within the United States.
Recall that the Court ruled earlier this year in Clapper v. Amnesty International that human rights and media organizations and attorneys lacked standing to challenge Section 702 of the FISA, which authorizes the surveillance, because they couldn't show that they had been, or would be, targets of surveillance. Solicitor General Donald Verrilli represented to the Court in the case that prosecutors tell defendants when they're using evidence derived from FISA surveillance. In particular, he wrote in the government's opening brief in the case,
If the government intends to use or disclose any information obtained or derived from its acquisition of a person's communications under [FISA Section 702] in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance . . . . That person may then challenge the use of that information in district court by challenging the lawfulness of the . . . acquisition.
Government's Opening Brief at 8 (emphasis added).
But this turns out to be false, according to the NYT. The Times reports that SG Verrilli discovered that prosecutors weren't telling defendants, after all.
The discovery came in the fallout of a speech by Senator Dianne Feinstein. That speech, touting FISA, suggested that the government used FISA-derived communications successfully in several cases. But when defendants in two of those cases pressed prosecutors, the prosecutors said that they didn't have to say whether they used FISA-derived communications.
This prompted SG Verrilli to ask national security lawyers why nobody told him before he filed his brief (and made similar comments at oral argument). Government lawyers then argued over whether they had to disclose, with SG Verrilli taking the position that do. Verrilli's position apparently prevailed, and the government will disclose to a defendant in coming weeks.
The move will give standing to the defendant to challenge Section 702, notwithstanding Clapper. That's because the defendant will be able to show, with certainty, that he was subject to FISA surveillance--something the Court said that the Clapper challengers couldn't do.
But it's not clear whether prosecutors will disclose to already-convicted defendants who were convicted on FISA-derived communications, and, if so, what will happen in those cases. It's not even clear how many of those defendants there are.