Mark Udall Wants To Release CIA Internal Review Of Torture Program

from the dropping-the-mic dept

Outgoing Senator Mark Udall has been a key player in trying to hold the intelligence community's feet to the fire concerning their unconstitutional and illegal activities -- and that includes both the NSA and CIA. He was a key player in making sure that the CIA torture report was actually released -- and there was pressure on him, if the report wasn't released, to read it into the record to force it out. Even with the release on Tuesday, some were asking for Udall to at least release an unredacted version or even more sections from the full ~7,000 page report, rather than just the 500 page exec summary. In fact, in Udall's final floor speech on Wednesday (link to a video that is about 50 minutes), the Senator instead chose to reveal more information related to the so-called "Panetta Review" on the CIA's torture program.

The Panetta Review is the internal CIA report, analyzing the same information that the Senate Intelligence Committee (SSCI) staff analyzed for the torture report, and came to the same basic conclusions about the CIA's torture practices, its lying to Congress and other bad activities. But here's the interesting bit: the CIA never intended anyone to see the Panetta Review. But it came out last year when CIA staffers accidentally handed it over to the Senate staffers as part of the investigation. That resulted in Udall questioning CIA bosses about the report during an open Senate hearing about a year ago -- which was followed up by the CIA infamously spying on the Senate staffers' computers. The CIA defended the spying by claiming that no one in the CIA had officially handed over that document (even though they had...) and thus they assumed that their own computers had a security breach. Or so they claimed.

The CIA has done everything it can to try to bury the Panetta Report. But Udall actually discussed it in depth. A big chunk of his speech is actually discussing some of the details in the Panetta Review, going beyond the CIA torture report. Following his speech, Senator Richard Burr -- who is a known buddy of the intelligence community, and soon to take over the Senate Intelligence Committee -- ridiculously claimed that Udall disclosed a bunch of "very classified" material. What it actually shows, however is that the CIA's response to the torture report is simply more lies from the CIA. As Udall noted in his speech, since the Panetta Review was supposed to be internal, it was a lot more open and honest, and it agreed with the Senate staffers. He first points out that the official CIA response to the terror report, from current Director John Brennan, shows the CIA's "flippant" attitude towards oversight and the fact that it knows the Obama administration will let the CIA get away with anything. However, the Panetta Review shows the true story.

In my view, the Panetta Review is a smoking gun. It raises fundamental questions about why a review of the CIA conducted internally years ago and never provided to the committee is so different from the official Brennan response and so different from the public statements of former CIA officials.

In other words, when discussing things in private, the CIA will readily admit to everything that's in the torture report. It's just when they're talking to the public that they try to spin the story.

The Panetta review is refreshingly free of excuses, qualifications or caveats.... The Panetta review found that the CIA repeatedly provided inaccurate information to the Congress, the president and the public on the efficacy of its coercive techniques.

He further notes that where the Brennan response tries to downplay or completely reject the findings of the Senate's report, the Panetta Review confirms all of them. From that, he notes that Senate staffers became concerned that the CIA was further lying to them, based on the claims of Director John Brennan.

Udall claims that the full Panetta Review should be released as well, since it is the CIA discussing the same issues in their own words, thus proving the claims by former CIA officials and their defenders that the SSCI report is nothing more than a "partisan hack job" are false. Furthermore, it shows that the CIA is lying in its response.

The refusal to provide the full Panetta Review and the refusal to acknowledge facts detailed in both the committee study and the Panetta Review lead to one disturbing finding: Director Brennan and the CIA today are continuing to willfully provide inaccurate information and misrepresent the efficacy of torture. In other words: The CIA is lying.

Of course, with Udall leaving the Senate, the Panetta Review is unlikely to see the light of day. Burr not only said that Udall's statements revealed classified materials, but also flat out lied, and claimed that "this is a document that was removed from the CIA against the law." Except that's not true. The DOJ investigated and didn't find anything wrong with what the Senate staffers did.

As the Politico article above notes, Jason Leopold has a FOIA lawsuit trying to get access to the Panetta Review, but that seems unlikely to get very far. In the end, it looks like the Panetta Review is likely to be locked up for many, many years, if it's ever released at all.

Filed Under: cia, cia torture report, mark udall, panetta review, torture report

Ridiculous: John Kerry Asks Dianne Feinstein Not To Release CIA Torture Report After Agreement Was Reached To Release On Monday

from the paging-mark-udall dept

Okay, this is just getting ridiculous. We've written plenty about the Senate Intelligence Committee's massive $40 million, 6,000 page torture report, detailing a variety of failures related to the CIA's torture program after 9/11. While the Committee voted (overwhelmingly) to release a redacted 480 page executive summary of the document, and the White House insisted it wanted to do so as well, since then it's become clear that the White House was going to do everything to block it from actually getting out.

Yesterday it came out that an agreement had finally been reached on the redactions and that it would finally be released on Monday. Apparently, the CIA/White House won the battle over the question of redacting pseudonyms -- which was a key fight. Basically, those who have seen the report say that if you redact the pseudonyms, important parts of what happened are greatly distorted (such as who is doing what). But apparently, that's what was agreed to anyway.

However, after everyone started gearing up for the release on Monday, Secretary of State John Kerry apparently called Senator Dianne Feinstein to argue that she should "delay" the release of the report, claiming that the timing is "sensitive" and that the US is worried it may mess up a variety of things:

“What he raised was timing of report release, because a lot is going on in the world -- including parts of the world particularly implicated -- and wanting to make sure foreign policy implications were being appropriately factored into timing,” an administration official told me. "He had a responsibility to do so because this isn’t just an intel issue -- it’s a foreign policy issue."

To put it simply, this is a complete bullshit argument. There's always going to be "a lot going on in the world" especially in areas who are going to be upset by the report. There's never going to be a "good" time to release a report that details just how screwed up the CIA's torture program is -- but it's the only way to actually start the process of making things right and making sure that we, as a country don't do that kind of thing again.

In fact, if the government is so damn concerned about the reaction to the release of the report, here's an idea: don't let the government do stuff that leads to a report that will create such a reaction!

Furthermore, the argument that a "delay" is necessary makes no sense either. Beyond the fact that there's always something going on in the world, in this case, they've known that this report was coming for months. To argue they haven't had enough time to prepare is clearly bogus. Back in April the State Department was whining about this as well, but now it's had months to prepare and it's still whining?

Finally, the claims by the State Department that it's just asking for a delay, rather than to shelve the whole report ring hollow. One of the reasons that it's coming out next week is because, after that, the Republicans are back in control, and they've indicated that they'll bury the report entirely. At this point, if Feinstein gives in to Kerry, it seems like the only viable option for getting the report out to the world is to have outgoing Senator Mark Udall release it himself on the floor of the Senate.

Filed Under: cia, cia torture, dianne feinstein, john kerry, mark udall, state department, torture report

Mark Udall's Open To Releasing CIA Torture Report Himself If Agreement Isn't Reached Over Redactions

from the putting-the-pressure-on dept

As we were worried might happen, Senator Mark Udall lost his re-election campaign in Colorado, meaning that one of the few Senators who vocally pushed back against the surveillance state is about to leave the Senate. However, Trevor Timm pointed out that, now that there was effectively "nothing to lose," Udall could go out with a bang and release the Senate Intelligence Committee's CIA torture report. The release of some of that report (a redacted version of the 400+ page "executive summary" -- the full report is well over 6,000 pages) has been in limbo for months since the Senate Intelligence Committee agreed to declassify it months ago. The CIA and the White House have been dragging out the process hoping to redact some of the most relevant info -- perhaps hoping that a new, Republican-controlled Senate would just bury the report.

The arguments for not leaking the report -- or just putting it into the Congressional record -- is not a legal one. Members of Congress are allowed to put whatever they want in the Congressional record without fear of legal repercussions. However, it could lead to other problems, including being kicked off of the Intelligence Committee, which would have led to less ability to oversee what was going on in the future. But since he's leaving anyway... As Timm notes:

But Udall’s loss doesn’t have to be all bad. The lame-duck transparency advocate now has a rare opportunity to truly show his principles in the final two months of his Senate career and finally expose, in great detail, the secret government wrongdoing he’s been criticizing for years. On his way out the door, Udall can use congressional immunity provided to him by the Constitution’s Speech and Debate clause to read the Senate’s still-classified 6,000-page CIA torture report into the Congressional record – on the floor, on TV, for the world to see.

There’s ample precedent for this. In 1971, former Senator Mike Gravel famously read the top-secret classified Pentagon Papers for three hours before almost collapsing and then entering thousands of pages more into the record after he couldn’t speak for any longer from exhaustion.

In fact, Gravel is now urging Udall to do exactly that, in an interview he gave to Dan Froomkin.

“If Udall wanted to do this, he could do the same thing.” Gravel said. “Hell, I’d fly into Washington and help him pass it out.”

If it’s more convenient, Gravel said, he’ll be in Udall’s home state of Colorado in a couple weeks. “If he wants to, we can get together over Thanksgiving weekend, and talk this thing out so he feels comfortable.”

The two biggest reasons not to do it, Gravel said, are no longer relevant. “The biggest fear you have is peer pressure. What are my members of the Senate going to think of me? But I’ve got to say, if you lose office, like he has, he’s got no more peer pressure.”

Udall himself had been rather quiet about all of this over the past few weeks, but has now told the Denver Post that all options are on the table, but he's still hopeful that a deal may be reached.

“I’m going to keep all options on the table to ensure the truth comes out,”

In an odd way, his loss may actually put extra pressure on the CIA to agree to fix the retraction problem, since they now know that Udall can just go around them entirely. Suddenly, the "fallback" position isn't such a good situation. In the past, the CIA could stall under the likelihood that no one could really do much about it. But that calculus has changed, meaning that the CIA no longer has the upper hand here. Still, it would be something if Udall decides that the only way to get this info out is to put it out himself, in part, because he could release a lot more than just the executive summary. Who knows if he'd go that far, but it's good to hear that he's at least open to the option.

Filed Under: cia, mark udall, privilege, torture report

One Of The NSA's Biggest Critics In The Senate May Lose His Seat

from the don't-let-that-happen dept

In the past, we've noted how unfortunate it was that the Senator who fought strongest for our civil liberties in Congress, Russ Feingold, got voted out of office back in 2010 -- in favor of a "Tea Party" candidate who has consistently voted in favor of the intelligence community since replacing Feingold. Since then, plenty of attention has gone to Senator Ron Wyden for picking up where Feingold left off, but with him on issues of civil liberties as it relates to the intelligence community has always been Senator Mark Udall -- who has been perhaps even more vocal than Senator Wyden on these issues.

And, worryingly, it appears that Udall may be facing a Feingold moment, where he's facing a candidate that has positioned himself more on "Tea Party" type issues. Udall hasn't campaigned very much on his amazing support for civil liberties, since many observers don't think that's an "election issue" in Colorado. However, recently, Udall has been willing to point to his important work on the Senate Intelligence Committee as one of a very small number of Senators who actually worked hard to push back against unconstitutional surveillance, to push for transparency and accountability for the intelligence community, and who pushed, repeatedly, to defend our civil liberties. It would be a huge loss for civil liberties if Udall were to lose this election, and a clear victory for the NSA, the intelligence community and those who like to spread FUD to retain power and take away your rights.

“I do think it would be a significant loss for the movement,” said Laura Murphy, the head of the American Civil Liberties Union’s Washington office.

[...]

“Were Sen. Udall to lose, I think he would be sorely missed,” echoed Scott Roehm, a senior counsel at The Constitution Project. “He was one of the earliest voices for meaningful surveillance reform even before the Snowden leaks.”

The Denver Post recently endorsed Udall's opponent, complaining that Udall wasn't enough of a "leader" in the Senate (not an easy thing to do as a first-term Senator). And while the editorial at least does call out Udall's work on the Intelligence Committee, it suggests that his opponent, Cory Gardner, is fine there too because he voted for the USA Freedom Act in the House. Except, of course, voting for a bill is one thing. Leading the charge on these issues is another thing altogether. Besides, the version of the USA Freedom Act that was voted on wasn't a good thing. It was the bill that the White House undermined at the last minute, leading all civil liberties groups to pull their support, and most members of the House who are big on civil liberties voted against the bill due to the compromises shoved into it. Voting for it didn't show a similar viewpoint, but rather the opposite.

There are lots of other issues for voters, of course, but feel free to check out Udall's stance on things. If you're in Colorado, please consider voting for one of the very few principled voices for civil liberties in Congress.

Filed Under: civil liberties, colorado, cory gardner, mark udall, nsa, surveillance

CIA's John Brennan Refuses To Tell Senate Who Okayed Spying On The Senate

from the constitutional-crisis dept

As you may recall, over the past few months, there's been a rather big story brewing, concerning how the CIA spied on Senate staffers. Specifically, after having explicitly promised not to do so, the CIA snooped on a private network of Senate staffers who were putting together the giant $40 million report on the CIA's torture program. The CIA tried to spin the story, claiming that they only spied on that network after realizing that those staffers had a document that the CIA thought it had not handed over to the staffers (they had), believing that perhaps there had been a security breach. However, when read carefully, the CIA's spin actually confirmed the original story: the CIA, against basically all of its mandates and the basic concept of the Constitutional separation of powers, had spied on the Senate. While both the Senate and the CIA asked the DOJ to investigate, eventually the DOJ said the matter was closed and there would be no prosecutions.

At the end of July, the CIA finally came out and admitted that it had spied on the Senate, and effectively admitted that CIA boss John Brennan had flat out lied about it back in March. The CIA's inspector general then revealed that the spying went even further than people had originally believed. This raised even more questions, but with Brennan "apologizing" and Senator Dianne Feinstein saying that she was satisfied with the apology, it seemed like this unfortunate incident may have been over and done with.

Apparently not. Last week, in the latest meeting concerning the torture report redactions, apparently some Senators asked Brennan to reveal who authorized the spying on the Senate staffers, and Brennan refused to tell them, leading to a bunch of very angry Senators -- which may create some further issues, given that the Senators are supposed to oversee the CIA.

Tensions between the CIA and its congressional overseers erupted anew this week when CIA Director John Brennan refused to tell lawmakers who authorized intrusions into computers used by the Senate Intelligence Committee to compile a damning report on the spy agency’s interrogation program.

Multiple Senators spoke out angrily about the situation:

“I’m concerned there’s disrespect towards the Congress,” Sen. Carl Levin, D-Mich., who also serves as chairman of the Senate Armed Services Committee, told McClatchy. “I think it’s arrogant, I think it’s unacceptable.”

“I continue to be incredibly frustrated with this director,” said Sen. Martin Heinrich, D-N.M. “He does not respect the role of the committee in providing oversight, and he continues to stonewall us on basic information, and it’s very frustrating. And it certainly doesn’t serve the agency well.”

Sen. Mark Udall, D-Colo., said he was “renewing my call” for Brennan’s resignation.

The CIA's response to all of this is typically maddening, in that it shows how they try to underplay what really happened:

CIA spokesman Dean Boyd said that Brennan declined to answer the committee’s questions because doing so could have compromised an investigation into the computer intrusions by an accountability board headed by former Sen. Evan Bayh.

The McClatchy report suggests that in the meeting, Brennan "raised his voice at Feinstein." Senator Levin noted that the CIA's response to this whole thing is bogus, because even if there is an independent investigation (set up by the CIA) going on, it doesn't mean that Brennan himself gets to shirk his responsibility to answer questions coming from the Senate committees that oversee his activities.

“It may or may not be appropriate for the (CIA) IG to answer, but it’s not appropriate for Brennan to refuse to answer. If he doesn’t know the answers, he can say so,” said Levin.

Levin continued, “He either knows the information or he doesn’t. If he doesn’t know the answers, OK, tell us. It’d be kind of stunning if he didn’t know the answers to those questions, but if that’s what he wants to say, he should tell us.”

Of course, the big question is, what will the Senate do about this other than make a lot of noise? Brennan seems to be banking on "absolutely nothing," and he may be right.

Filed Under: carl levin, cia, dianne feinstein, john brennan, mark udall, martin heinrich, senate, senate staffers, spying, torture report

Senators Slam White House For CIA Torture Report Redactions That Make It 'Incomprehensible'

from the just-release-it dept

The fight over the redactions of the CIA's torture report continue. Last week, Senator Dianne Feinstein noted that she and her staff were somewhat taken aback by the amount of redacted information when they received back the black ink-drenched copy of the executive summary to the $40 million, 6,300 page "devastating" report on the CIA's torture program prepared by the Senate Intelligence Committee. In response, James Clapper shot back that the redactions were "minimal" and over 85% of the document was free from black ink (it's not clear if he was counting the margins as well...).

Of course, as Marcy Wheeler has pointed out, this is just about the executive summary of the report -- which was specifically written to be published. In other words, the really "secret" stuff is in the rest of the report, but the 408 page exec summary was written with public disclosure in mind -- meaning that the Senate Intelligence Committee staffers certainly wrote it with the expectation that it would need few, if any, redactions. So the fact that large chunks of it were redacted immediately set off some alarms.

On Tuesday, multiple Senators on the Intelligence Committee spoke out angrily about the redactions. It kicked off with Feinstein who noted that the review her staff went through of the redactions shows that the censors are trying to hide information that should be public:

“After further review of the redacted version of the executive summary, I have concluded the redactions eliminate or obscure key facts that support the report’s findings and conclusions. Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.

“I am sending a letter today to the president laying out a series of changes to the redactions that we believe are necessary prior to public release. The White House and the intelligence community have committed to working through these changes in good faith. This process will take some time, and the report will not be released until I am satisfied that all redactions are appropriate.

“The bottom line is that the United States must never again make the mistakes documented in this report. I believe the best way to accomplish that is to make public our thorough documentary history of the CIA’s program. That is why I believe taking our time and getting it right is so important, and I will not rush this process.”

Senator Carl Levin then came out with a much more strongly worded condemnation of the redactions suggesting that they were clearly designed to hide embarrassing information, which is not a legitimate reason for redactions:

“The redactions that CIA has proposed to the Intelligence Committee’s report on CIA interrogations are totally unacceptable. Classification should be used to protect sources and methods or the disclosure of information which could compromise national security, not to avoid disclosure of improper acts or embarrassing information. But in reviewing the CIA-proposed redactions, I saw multiple instances where CIA proposes to redact information that has already been publicly disclosed in the Senate Armed Services Committee report on detainee abuse that was reviewed by the administration and authorized for release in 2009. The White House needs to take hold of this process and ensure that all information that should be declassified is declassified.”

Senator Mark Udall issued a statement in which he notes that the "strategic" redactions are used to distort the nature of what's in the report:

"While Director Clapper may be technically correct that the document has been 85 percent declassified, it is also true that strategically placed redactions can make a narrative incomprehensible and can certainly make it more difficult to understand the basis for the findings and conclusions reached in the report. I agree wholeheartedly that redactions are necessary to protect intelligence sources and methods, but the White House must work closely with this committee to reach this goal in a way that makes it possible for the public to understand what happened.

"I am committed to working with Chairman Feinstein to declassify the Senate Intelligence Committee's study to the fullest extent possible, correct the record on the CIA's brutal and ineffective detention and interrogation program, and ensure the CIA learns from its past mistakes. And in light of the importance of the work the Senate Intelligence Committee has undertaken, I believe that the chairman should take all necessary time to ensure that the redactions to the executive summary are appropriate — not merely made to cover up acts that could embarrass the agency.

"The CIA should not face its past with a redaction pen, and the White House must not allow it to do so."

All three of those Senators are well aware of what's in the report, and it appears they recognize that the black ink was being used not to protect national security or "sources and methods" but rather to hide or distort the facts of the CIA's torture program.

Filed Under: carl levin, cia, dianne feinstein, james clapper, mark udall, odni, redactions, senate intelligence committee, torture report, white house

Senators Wyden And Udall Pledge To Strengthen USA Freedom Act By Closing Surveillance Backdoor

from the that-would-be-good dept

By now, it should be well known that Senators Ron Wyden and Mark Udall are the two key truth-tellers in Congress when it comes to what kind of surveillance is being done by the intelligence community. If they ask a question, assume the answer is "yes." With the introduction of the new USA Freedom Act in the Senate, we noted that, while it does take a big step forward, there is a lot more that can be done. Wyden and Udall have released a statement noting that they plan to seek to strengthen the bill with an amendment to close the backdoor search "loophole" which is used by the entire intelligence community to spy on Americans. It's unfortunate that Leahy didn't include that in the original bill -- and it suggests that there might not (yet) be enough support to close the backdoor. But this is a massively important issue -- as Wyden and Udall have been pointing out for quite some time now. Hopefully, enough noise can be made that this important change is added to the bill.

Filed Under: backdoor searches, mark udall, privacy, ron wyden, section 702, surveillance, usa freedom act

Senate Intelligence Committee Approves Dangerous Cybersecurity Bill

from the because-of-course dept

We've written about the Senate's dangerous CIPA bill -- which is Congress' latest (bad) attempt to help increase the NSA-led surveillance state by giving companies blanket immunity if they share private information with the government... all in the name of overhyped "cybersecurity." We, of course, have been through this fight before, with the CISPA bill, which passed in the House a few times, but couldn't get any traction in the Senate. This time around, the (really bad) Senate version passed out of the Senate Intelligence Committee by a 12-3 vote (held in secret, of course). Not surprisingly, two of the three who voted against it are Ron Wyden and Mark Udall.

By now you should know: if Ron Wyden and Mark Udall are against something related to surveillance, you should be against it too (and the opposite is true as well).

The "good" news is that despite the overwhelming support by the NSA's biggest cheerleaders on the rest of the Senate Intelligence Committee, it seems unlikely that the bill will have enough support in the overall Senate. And it will hopefully remain that way. This bill is a dangerous one, that is solely designed to give the NSA and some companies additional legal "cover" for aiding the NSA's surveillance efforts. Thanks to Snowden's revelations, companies are, in general, a lot less willing to do that these days anyway, but giving those companies blanket liability to do so is a bad, bad idea.

And while there's still little to no evidence that the "cybersecurity threat" is anywhere close to as big as what the FUDmongers insist it is, even if that is true, no one has yet explained what laws actually get in the way of having companies share critical cybersecurity information as needed. And, if such laws really do exist, any solution should to just be narrowly focused on fixing those laws, rather than granting broad immunity for sharing just about any info.

Filed Under: cisa, cispa, cybersecurity, dianne feinstein, mark udall, ron wyden, saxby chambliss, senate, senate intelligence committee

Senators To Obama: Hey You Can End Bulk Phone Data Collection Today; Obama: Ha, Ha, Ha, Nope!

from the well,-that-was-an-idea dept

This morning, a group of Senators, Mark Udall, Ron Wyden and Martin Heinrich, sent President Obama a letter reminding him that he can live up to his promise to end bulk phone record collection today by simply having the DOJ not seek to renew the court order from the FISA Court getting the phone operators to hand over that data.

We welcome your proposal, announced on March 27, 2014, to end the bulk collection of Americans' phone records under Section 215 of the USA PATRIOT Act. We believe as you do that the government can protect national security by collecting the phone records of individuals connected to terrorism, instead of collecting the records of millions of law-abiding Americans. We also believe that you have the authority to implement your proposal now, rather than continuing to reauthorize the existing bulk collection program in 90-day increments.

And, of course, just hours later, James Clapper responded, not to the letter, but in a Tumblr post, which again mentions how President Obama promised to end such bulk collection, but then saying that the administration is still seeking the next 90 day extension to keep collecting those phone records. The post even calls out the passage of the totally watered-down USA Freedom Act in the House as "prohibiting" such bulk collection (even though it doesn't really do that, since it allows broad selectors that give the NSA effectively the same power). However...

Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the Section 215 telephony metadata program, the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President announced earlier this year.

Consistent with prior declassification decisions, in light of the significant and continuing public interest in the telephony metadata collection program, the Director of National Intelligence, James Clapper, has declassified the fact that the government’s application to renew the program was approved yesterday by the FISC. The order issued yesterday expires on September 12, 2014.

Wait. Given what importance of maintaining the capabilities? So far, every analysis of the program has shown that it wasn't important at all. How could anyone in the administration still claim with a straight face that the Section 215 bulk phone records collection is "important" when everyone who's seen the evidence agrees that the program has been next to useless in stopping terrorism.

Either way, even though President Obama has already said that he wants the program ended, and he could do so, he's still keeping it going.

Filed Under: bulk phone records, james clapper, mark udall, martin heinrich, nsa, odni, ron wyden, section 215, surveillance

DOJ Still Trying To Hide The Fact It Flat Out Lied To The Supreme Court About Domestic Surveillance

from the because-terrorism dept

Last year, we noted that US Solicitor General Donald Verrilli had lied to the Supreme Court in Amnesty International's lawsuit about warrantless wiretapping. If you don't recall, Amnesty International had sued about the program, but the US government successfully got the case tossed by arguing that Amnesty International had no proof that their communications were tapped, and thus they had no standing to sue. The Supreme Court appeared troubled by the fact that no one could sue unless they somehow knew for a fact they were being spied upon, but eventually sided with the government, in large part because of one of Verrilli's false statements.

Specifically, he claimed that others would have standing to sue, because if the government used the information obtained via such a warrantless wiretap (under Section 702 of the FISA Amendments Act) it would have to inform those who were being charged with a crime because of that information. It was only much later, when Dianne Feinstein was bragging about how effective Section 702 was in stopping "terrorists" (during a Senate debate on renewing the FISA Amendments Act) that it became clear that Verrilli had made false claims to the Supreme Court. Because in her bragging, she mentioned some specific cases that she said made use of Section 702 -- and the lawyers for the defendants in those cases quickly realized that they were never informed about that.

To his credit, Verrilli himself not only claimed that he was misled by national security lawyers, but ordered that the practice be changed, and some defendants have since been informed.

Of course, to some, that has been too little too late. Back in November, we noted that Senators Mark Udall, Ron Wyden and Martin Heinrich pointed out a second false statement that Verrilli made to the Supreme Court in the same case. Specifically, the DOJ and Verrilli told the court that the NSA would have to have "targeted the communications" of someone that Amnesty was talking to, and that was "highly speculative" for Amnesty to assume that was true. But, as the Senators pointed out, it was later declassified that the 702 program was not just about collecting the communications to or from "targeted" individuals, but also any communications about them.

While this may seem like a small deal, it's actually a very big deal, because it could likely mean that the communications of many Americans were collected without any sort of warrant. It turns out that in December, the DOJ responded, but that response has just been released. In it, the DOJ insists that lying to the Supreme Court concerning the fact that Section 702 allowed for the collection of purely domestic communications without a warrant if they were merely "about" a target (rather than to or from that target) was really no big deal at all and not relevant to the case.

Your letter raises questions regarding the now-declassified "about" collections that have resulted in the acquisition of some wholly domestic communications as a result of Section 702 surveillance and whether the government's representations in Clapper v. Amnesty International were incomplete or misleading for failing to refer to such collections. The government acted appropriately by not addressing the "about" collections in Clapper v. Amnesty International because the existence of this type of collection was classified throughout the period during which the case was briefed, argued, and decided, and because those collections did not bear upon on the legal issues in the case. At all times, the Department and the Office of the Solicitor General have a duty of candor in our representations to the Supreme Court, and it is a duty we take extremely seriously. The Department and the Office of the Solicitor General also have a duty to respect the classified status of information, and that is also a duty we take extremely seriously. In litigation, we must take pains to avoid discussing matters that are unnecessary to the resolution of matters before the Court when those matters might disclose classified information or undermine national security, while ensuring that the Court has all of the information relevant to deciding the issues before it.

The Department's briefing and argument in Clapper v. Amnesty International fully respected both of these duties. The Department described the surveillance authorized by Section 702 (and the provision's targeting and minimization requirements) accurately, and we made no statements that could be reasonably understood as denying the existence of "about" collection. Moreover, the possibility of then-classified, incidental collection of domestic communications, while of undoubted importance and interest to the public, was not material to the legal issue before the Supreme Court.

Wyden and Udall have now responded to the DOJ's letter and, not surprisingly, they're still very troubled by the DOJ providing false and misleading information to the Supreme Court in a key case challenging the NSA's surveillance under the FISA Amendments Act. First, the Senators note that, contrary to the DOJ's claims, both the briefings before the Supreme Court and the oral arguments included statements which actively misled the Court into believing Section 702 only applied to communications to or from a target -- and that clearly was not true.

More importantly, they note that, contrary to the DOJ's claims, it's pretty clear that this very much mattered as a part of the Supreme Court's reasoning:

The Justice Department's reply also states that the "about" collection "did not bear upon the legal issues in this case." But in fact these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court's analysis. In writing for the majority, Justice Alito echoed your statements to the Court by stating that the "respondents' theory necessarily rests on their assertion that the Government will target other individuals -- namely their foreign contacts." This statement, like your statements, appears to foreclose the possibility of "about" colleciton.

We recognize that the inclusion of this misleading statement in the Court's analysis does not prove that the Court would have ruled differently if it had been given a fuller set of facts. Indeed, it is entirely possible that the Court would have ruled in exactly the same way. But while the Justice Department may claim that the Amnesty plaintiffs' arguments would have been "equally speculative" if they had referenced the "about" collection, that should be a determination for the courts, and not the Justice Department, to make.

While this seems like a technical issue, it's a huge deal. Effectively, the DOJ and Solicitor General Verrilli -- whether on purpose or not -- misled the Supreme Court on two key aspects of the 702 collection program, and it appears that the Supreme Court relied, in part, on both of those misleading statements in coming to its decision. The fact that the DOJ still appears rather unconcerned about how its misrepresentations may have impacted the courts is immensely troubling, not just because it may have resulted in an illegal and unconstitutional surveillance program continuing for many extra years, but also because it highlights the mendacity of the DOJ in trying to win cases at all costs, rather than actually trying to make sure the law is applied appropriately.

As the new letter from Udall and Wyden concludes:

As we have noted elsewhere, we are concerned that the executive branch's decade-long reliance on a secret body of surveillance law has given rise to a culture of misinformation, and led senior officials to repeatedly make misleading statements to the public, Congress and the courts about domestic surveillance. The way to end this culture of misinformation and restore the public trust is to acknowledge and correct inaccurate statements when they are made, and not seek to ignore or justify them.

It's unfortunate that it appears that so few in Congress are up in arms over this. The executive branch purposely misleading the judicial branch over constitutional issues is a very big deal, and most in Congress don't seem to want to have anything to do with it.

Filed Under: doj, donald verrilli, faa, fisa amendments act, mark udall, ron wyden, section 702, supreme court, surveillance, targets
Companies: amnesty international