How the government has evaded constitutional test of secret wiretaps

By Alison Frankel
October 18, 2013

If you haven’t already, please read Charlie Savage’s fascinating story, “Door May Open for Challenge to Secret Wiretaps,” in Thursday’s New York Times. Savage reported that the Justice Department is poised for the first time to notify a criminal defendant that evidence against him was obtained through the FISA Amendment Act of 2008 (FAA), which granted the Foreign Intelligence Surveillance Court the power to approve sweeping, warrantless wiretapping. The notification is significant because it will establish the defendant’s standing, under the U.S. Supreme Court’s ruling last February in Clapper v. Amnesty International, to challenge the constitutionality of warrantless wiretapping authorized under the FAA.

Savage’s story detailed the debate within the executive branch about whether the Justice Department is obligated to tell defendants about evidence obtained through warrantless surveillance. U.S. Solicitor General Donald Verrilli – who had assured the U.S. Supreme Court in the Clapper case that such disclosures would be made – was reportedly taken aback when he learned in June that prosecutors took a contrary position in opposing motions for disclosure by three defendants accused of terrorist acts. The defendants – two brothers charged in Ft. Lauderdale, Florida, federal court and one young suspect in a Chicago case – had asked the government to acknowledge its use of evidence from FAA-approved wiretaps, after Senator Dianne Feinstein (D-Calif) publicly cited their cases, among others, as justification for the broad data collection permitted under the FAA. Through the summer, according to Savage, the Justice Department discussed how to reconcile concerns about the national security implications of notifying defendants with defendants’ due process rights. The upcoming notification, in an unspecified case, reflects Justice’s determination that it is legally required to disclose to defendants that it has obtained evidence through warrantless wiretaps.

The Times story, as well as a Freedom of Information Act complaint filed Thursday afternoon by the American Civil Liberties Union against the Justice Department, prompted me to go back to the records in the Ft. Lauderdale and Chicago cases Savage cited, to see how the government has so far fended off notification demands. Defense lawyers in the cases deserve a lot of credit for their dedication and enterprise in making those demands. According to the ACLU complaint, 11 cases implicating FAA-derived evidence have been publicly cited in Congress. Senator Feinstein mentioned eight cases in an FAA reauthorization hearing before the Senate Select Committee on Intelligence in December, and in June FBI Deputy Director Sean Joyce mentioned three others in testimony before the House Permanent Select Committee on Intelligence. Defendants in many of the cases have already pleaded guilty, often, according to Patrick Toomey of the ACLU, before they ever knew the government was running the mass data collection operations revealed by Edward Snowden. Only Durkin & Roberts, for Chicago defendant Adel Daoud, and Ronald Chapman and Daniel Ecarius, for Ft. Lauderdale defendants Sheheryar Qazi and Raees Qazi, have demanded that government disclose whether any of its evidence is the fruit of warrantless wiretaps.

I’ve previously written about the Qazi case, which alleges that the brothers participated in a plot to blow up a New York City landmark. After a federal magistrate granted a defense motion to compel the government to disclose the source of its evidence in May, prosecutors filed a one-page non-responsive response stating that it had already provided notice that any foreign surveillance evidence in the case was obtained pursuant to FISA provisions that predated the 2008 amendments to the act. Undeterred by prosecutors’ obfuscation, the defendants moved to declare the FISA Amendment Act unconstitutional. The government replied on July 30 that the Qazis do not have standing to challenge the law because the government “will not use any evidence that was obtained or derived from FAA-authorized surveillance” against them. (It also said that any challenge to FISA evidence must take place through a FISA suppression hearing.) U.S. District Judge Robert Scola has not ruled on the constitutional challenge to the FAA.

The Chicago defendant represented by Durkin & Roberts – Adel Daoud, who is accused of attempting to set off a bomb outside of a bar in Chicago – managed at least to obtain an acknowledgement from the government in a “clarification” in August that it is obligated to notify the court and the defense if the government intends to use information obtained or derived from the FAA in the case. That was more than Daoud’s counsel was informed in a June brief in which prosecutors said FAA “on its face…does not require the government to disclose whether the information it intends to use was obtained under traditional FISA or instead under FAA.” But even in the August brief, prosecutors reiterated that they were not relying on FAA evidence in the Daoud case. They also spelled out five criteria that must be met to require notification, and said that the government is not obliged to disclose surveillance unless all five are satisfied.

Durkin & Roberts is now pushing for discovery on what the executive branch told the Senate Intelligence Committee about warrantless wiretaps on Daoud. In a Sept. 18 brief, Daoud’s lawyers argued that Senator Feinstein’s hearing statement, which cited his case as one reason to continue warrantless surveillance, is inconsistent with the government’s position that no such evidence will be used against him. They explained that they’d asked the Senate Committee for information and had been informed in a letter from Senate Legal Counsel Morgan Frankel that Feinstein did not mean to imply that FAA evidence was part of the case against Daoud but merely cited his prosecution as one among many involving failed terror plots.

Dauod’s lawyers ended their brief with a plea and a threat: “At the risk of stating the obvious, had the FAA not been used whatsoever in the investigation of Defendant, one would think that the Office of Senate Legal Counsel, the (Senate Intelligence Committee), Senator Feinstein, the NSA, the FBI, the Justice Department, or the U.S. Attorney’s Office could just simply say so,” they wrote. “That ‘clarification’ would have been far more helpful than any provided by Senate Legal Counsel or the opaque responses by the prosecutors to date…. Counsel would suggest that the semantic and procedural battle being waged here only further demonstrates the lengths by which the Executive Branch, or more correctly its intelligence agencies, wish to avoid constitutional review of the FAA.”

The Times story, as I mentioned, does not identify the case in which the defendant will soon be notified of the prosecution’s use of FAA-derived evidence. If the notification comes in the Daoud or Qazi cases, it will be a huge embarrassment to the prosecutors who have steadfastly insisted that no such evidence needed to be disclosed in those cases.

The ACLU, meanwhile, is hoping that the organized criminal defense bar joins its campaign against wireless wiretapping, especially now that the Justice Department is reviewing even closed cases to see if it failed to make adequate disclosures. The group is also hoping, according to ACLU lawyer Toomey, that Solicitor General Verrilli files an acknowledgement at the Supreme Court that his previous assurance in Clapper v. Amnesty International that notifications had been made was inaccurate.) The suit filed Thursday seeks Justice Department records under the Freedom of Information Act on all cases in which prosecutors have made use of FAA-obtained evidence, as well as memos, briefs and policy statements explaining the Justice Department’s interpretation of FAA’s notice provisions.

“It’s been five years since FAA was enacted and no defendant has received notice,” Toomey said. “You knew something was not working the way it should have.”

(Reporting by Alison Frankel)

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