Lack of Notice to Defendants Has Shielded Warrantless Wiretapping From Judicial Review

FOR IMMEDIATE RELEASE

October 17, 2013

CONTACT: 212-549-2666, media@aclu.org

NEW YORK – The American Civil Liberties Union today filed a Freedom of Information Act lawsuit seeking the government’s policy for notifying criminal defendants that they were monitored under the FISA Amendments Act, the 2008 law that authorized the NSA to continue its warrantless wiretapping of Americans’ international communications. The ACLU challenged that law, but the Supreme Court dismissed the lawsuit in February because the plaintiffs could not prove they had been spied on. The government assured the court that criminal defendants who were actually monitored under the program would be told, giving them the opportunity to challenge the law. The New York Times reported last night, however, that the Justice Department has not been notifying defendants – but that it has changed the policy going forward.

"By failing to tell defendants that they had been surveilled by the NSA under the FISA Amendments Act, the government effectively shielded its warrantless wiretapping program from judicial review. We hope this reported policy reversal will change that," said Patrick Toomey, staff attorney with the ACLU National Security Project. "The Justice Department told the Supreme Court that review of the surveillance law would be possible, but then made it impossible by keeping who was spied on a secret, even from defendants who had a legal right to know. This FOIA lawsuit aims to reveal how the government justified keeping defendants in the dark about evidence based on NSA surveillance, and what the policy is today."

The lawsuit filed today in the Southern District of New York is to enforce a FOIA request filed in March. In addition to asking for the notification policy and its justification, the request asks for records indicating the cases in which the government used any information obtained from NSA surveillance under the FISA Amendments Act.

According to The Times, there was an internal debate in the Justice Department over notifying criminal defendants of the NSA surveillance. The National Security Division said it was not necessary, but the solicitor general, who assured the Supreme Court that notice would be provided, reportedly concluded there was no legal basis for depriving defendants of notice.

The Times also reported that the Justice Department would, in the next two weeks, notify a criminal defendant that information from NSA surveillance under the FISA Amendments Act had been used in his or her case. There are two terrorism prosecutions currently pending, in Chicago and Fort Lauderdale, in which the defendants asked the Justice Department to say whether they were spied on by the NSA under this law, and the government declined to do so.

The FOIA request is at:

aclu.org/national-security/foia-request-seeking-policies-and-records-use-nsa-surveillance-criminal-cases