DOJ Still Not Informing Defendants About Sources Of Surveillance Program-Derived Evidence Being Used Against Them

from the laws-are-for-defendants dept

The NSA's Section 702 surveillance program is massive. It provides the NSA (and the FBI) with access to the email content and internet activity of millions of people, some of them US citizens. Quite obviously, the intelligence gathered with it has led to prosecutions. But the government is still seemingly uninterested in informing defendants about the origin of evidence being used against them.

Just Security's Patrick Toomey notes that the US government -- after a brief flurry of complying with federal law -- appears to have gone back to ignoring it.

Up until 2013, no criminal defendant received notice of Section 702 surveillance, even though notice is required by statute. Then, after reports surfaced in the New York Times that the Justice Department had misled the Supreme Court and was evading its notice obligations, the government issued five such notices in criminal cases between October 2013 and April 2014. After that, the notices stopped — and for the last 20 months, crickets.

Toomey notes that the DOJ -- after realizing its original interpretation of the statute was perhaps a bit flawed -- adopted a new interpretation of the statute, one that is only marginally broader.

Based on what can be gleaned from the public record, it seems likely that defendants are not getting notice because DOJ is interpreting a key term of art in Fourth Amendment law too narrowly — the phrase “derived from.” Under FISA itself, the government is obliged to give notice to a defendant when its evidence is “derived from” Section 702 surveillance of the defendant’s communications. There is good reason to think that DOJ has interpreted this phrase so narrowly that it can almost always get around its own rule, at least in new cases.

This is one of the government's favorite games: redefining common words to serve the purpose of obscuring surveillance efforts. How does the DOJ dodge having to report the origin of evidence "derived from" the 702 collection? Toomey speculates it could take multiple approaches. The easiest way to eliminate any mention of 702 collections from submitted evidence is to obscure its origin by citing other surveillance techniques -- in other words, parallel construction.

The five notices sent out after the DOJ briefly reappraised its notice obligations are probably the last we'll see for awhile. The DOJ clearly isn't interested in adhering to the statute. It has spent the intervening months perfecting its source obfuscation. It also may have obtained official legal guidance (from the Office of Legal Counsel) that "explains away" its obligation to inform defendants of the source of evidence. If so, the American public won't be apprised of the DOJ's interpretation of its notice obligations any time soon. The US government has made it almost impossible for the public to discover the legal rationales for its national security efforts.

The government likes its secrets. And it also likes to be challenged as infrequently as possible. That's the other reason the DOJ is burying links to FISA-authorized surveillance.

Crucially, it’s not only the rights of criminal defendants that are at stake, and it’s not only Section 702 surveillance that is implicated by the government’s cramped view of its notice obligations. The government’s use of standing doctrine and the state secrets privilege in civil cases has left precious few ways of obtaining public, adversarial court review of surveillance programs. If the government can regularly avoid its duty to give notice to criminal defendants, it will have succeeded in all but closing the courthouse doors to cases challenging surveillance that affects millions.

Few plaintiffs have been granted standing in national surveillance-related lawsuits and I'm sure that small number is still far more than the government would like to see. That number isn't going to increase anytime soon, not with the DOJ treating its notice obligations as entirely optional or never applicable.

Filed Under: discovery, doj, informing defendants, law enforcement, section 702, surveillance