As the nation learns more about the National Security Agency’s eavesdropping program, such as recent revelations that the NSA most likely tapped into the communications of Google and Yahoo users, not through cooperation with the companies themselves, but via collusion with the companies’ Internet backbone providers, questions on how the federal government approached its surveillance are increasingly becoming more difficult to answer. One such question — if the Justice Department knowingly lied to the Supreme Court regarding the NSA’s procedures about the notification of targets — presents a potential minefield for the Obama administration.

In the 2012 Clapper v. Amnesty International case, Solicitor General of the Department of Justice Donald B. Verrilli, Jr. made the argument that human rights groups, lawyers and reporters who sought to challenge the government’s secret surveillance programs had no right to, as they had no particular reason to think their communications were being collected, thereby, creating a situation in which they could not prove to be harmed by the surveillance program. But as Associate Justice Sonia Sotomayor pushed this issue, asking if anyone had standing to challenge the constitutionality of the program, Verrilli answered:

“Your Honor, under the statute, there are two clear examples of situations in which the individuals would have standing. The first is if an aggrieved person, someone who is a party to a communication, gets notice that the government intends to introduce information in a proceeding against them. They have standing. That standing could include a facial challenge like the one here.”

In a brief, he went further to drive home this distinction. “That contention is misplaced,” he wrote. “Others may be able to establish standing even if respondents cannot. As respondents recognize, the government must provide advance notice of its intent to use information obtained or derived from” the surveillance authorized by the 2008 law “against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance.”

In its 5-4 decision for the administration, the Supreme Court reflected Verrilli’s argument, “…if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition….” the majority decision read. “Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure…. In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.”

What actually happened in the criminal prosecution in which government surveillance was used is that prosecutors refused to make disclosures of the use of gathered surveillance, as Verrilli asserted. As reported by the New York Times:

“In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance. Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

“In the Fort Lauderdale case, Magistrate Judge John J. O’Sullivan ordered the government to disclose whether it had gathered information for the case under the 2008 law. He relied on Justice Alito’s statement in the Clapper decision. The government has moved for reconsideration.”

In December, Sen. Dianne Feinstein (D – Calif.) publicly used the Fort Lauderdale and Chicago cases as “specific cases where FISA Amendments Act authorities were used.” “These cases show the program has worked,” she said.

In response to this “confusion,” Sens. Mark Udall (D – Co.), Ron Wyden (D – Ore.) and Martin Heinrich (D – N.M.) have called on Verrilli not only to clarify the “misrepresentations” with the Supreme Court, which would likely result in a decision reversal, but to also clarify the nature of the NSA’s surveillance — in particular, the law’s position in permitting the government to surveil on communications about foreign targets.

“This form of collection allows the government – through the ‘upstream’ collection under Section 702 – to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target,” read the senators’ letter.

“But according to the FISA Court’s October 2011 opinion, the ‘about’ collection likely results in the acquisition of “tens of thousands” of wholly domestic communications every year.” According to the senators, such an act seems to violate the “spirit of the law,” as it presents the opportunity for the government to surveil under minimum ratification without disclosure to no agency — including the Supreme Court.

The Justice Department has moved to bring its procedures in line with Verrilli’s Supreme Court arguments and inform defendants that they were surveilled upon, but there are no indications that Verrilli intends to inform the Supreme Court of his “misrepresentations.”