How and when the government uses its classified systems to gather intelligence has itself historically been kept secret by the government (though its ability to do so suffered a setback in July). But last February the Supreme Court threw out a lawsuit filed against the government by groups including the ACLU in part because it demanded that the plaintiffs have standing. In other words, that they be people subjected to the surveillance being challenged. When the plaintiffs argued that the secrecy surrounding surveillance made it impossible to know, the government's lawyer stated that those prosecuted using such evidence would know about it. That point was critical to dismissal of the case. In August, for perhaps the first time, the government informed defendants in a criminal case in Chicago that the NSA's surveillance was included among the evidence against them. (That case was not terrorism-related and was not mentioned by Feinstein.)

But that didn't happen with the Qazis — raising implications beyond their case alone. Talking Points Memo reports:

"This lack of candor is deeply troubling because it continues a pattern of cases in which government prosecutors have failed to provide notice of FAA surveillance to criminal defendants," the defense attorneys wrote. "Because of this lack of notice, the warrantless surveillance program has never been subjected to judicial review in any public courtroom."

What the government did offer was the sort of qualification Feinstein presented: Maybe we used it, maybe we didn't. A Feinstein aide told TPM that the senator's speech "was not intended to state which cases had relied upon FAA surveillance. The aide said that Feinstein couldn’t make that assertion because the information is classified."

And that's the Catch-22. We've written before about how the NSA purposefully walks up to and over and around the lines of revealing what it does with the information it gathers, always pushing to present itself in the most positive light possible. The government talks about some disrupted plots and implies there are far more which remain classified. It declassifies key documents from the goodness of its heart, not because its responding to a lawsuit from activists. It allows a specific case to be used as evidence of its success, unless that case could also be used as the basis of a legal challenge to the surveillance system. In that case, it acts coy.

Feinstein used the Qazis as an example of why the FISA amendments were needed. The government refuses to admit that it used the amendments to prosecute the Qazis, lest the defendants bring a case back to the Supreme Court. This is not how it's supposed to work.

This article is from the archive of our partner The Wire.