Given reports that President Obama may promote U.S. Solicitor General Donald Verrilli to Attorney General, perhaps it’s worth revisiting the time he misled the Supreme Court.
Let’s travel back to the year 1 BS (Before Snowden), or 2012 for those still on the Gregorian Calendar — before National Security Agency contractor Edward Snowden revealed just how pervasive government spying had become. The American Civil Liberties Union was challenging the FISA Amendments Act of 2008, Section 702 of which allows warrantless surveillance of any targets reasonably believed to be located outside the U.S. or of any group reasonably believed to not be “substantially” composed of Americans.
The government was eager to have the case dismissed, so Verrilli, addressing the Supreme Court on its behalf, offered up an alternate plaintiff: terrorists. He assured the court that since the law mandates criminal defendants receive notice of surveillance used against them, terrorists should be the ones to challenge the law rather than the ACLU, which could not prove its clients had been affected.
The ACLU’s clients, in this case, were attorneys and human rights, labor, legal, and media organizations, who could not prove — only speculate — that they had been surveilled. Under the technical doctrine of standing, a plaintiff cannot sue based on mere speculation of harm, and Verrilli was insistent that the ACLU’s case was thusly speculative and should be dismissed. Justice Sonia Sotomayor brought up the point that this left many and perhaps all surveillance targets essentially powerless in the courts — “if there was a constitutional violation in the interception… no one could ever stop it until they were charged with a crime,” she pointed out.
To which Verrilli essentially replied that government surveillance targets get notice and thus had ample opportunity to sue:
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.
He made the same point on page 8 of his written brief:
If the government intends to use or disclose any information obtained or derived from its acquisition of a person’s communication’s under Section 1881a in judicial or administrative proceedings against that person, it must provide advanced notice of its intent to the tribunal and the person, regardless of whether or not that person was targeted for surveillance under Section 1881a.”
The Court obliged and dismissed the case. Yet, in the five years the law has been in effect, no defendant had ever received notice, a fact that Verrilli was either oblivious or indifferent to. When Edward Snowden exposed PRISM just a few months later, the government’s story fell apart. No longer was the ACLU’s case, in the words of Verrilli, “a cascade of speculation.” On the contrary, mass surveillance — without notice to the targets — was shown to be very real.
Verrilli and the Justice Department allegedly scrambled to make things right, and late last year, Attorney General Eric Holder announced that the DOJ would start providing notice to defendants.
“We have a review underway now,” he told The Washington Post. “We will be examining cases that are in a variety of stages, and we will be, where appropriate, providing defendants with information that they should have so they can make their own determinations about how they want to react to it.”
While providing criminal defendants information “that they should have” that is a welcome step, it doesn’t change the fact that Verrilli misled the Supreme Court by implying that surveillance targets received notification, and that his misleading statements helped convince the court to throw out a challenge to mass surveillance. Did Verrilli knowingly lie, or was he was an unwittingly patsy for the DOJ lawyers who vetted his arguments. Either way, the public is owed an explanation from him.
Last May, I filed a Freedom of Information Act (“FOIA”) request to Verrilli’s office asking for email headers (to, from, date, and subject line) between Verrilli and the DOJ officials responsible for vetting his arguments. In order to simplify my request, I granted them permission to omit the actual content of the emails. In other words, I just want to see who the Solicitor General was consulting without any additional fuss. Despite qualifying for expedited processing of my request, I have waited five months for the Solicitor General’s Office to run what should amount to a half-hour search. After repeated requests for an update, I was told they expect to produce the documents in January of 2015.
Why is Donald Verrilli’s Office ducking disclosure of this information? Is it his position that the identities of the government attorneys who helped him prepare his arguments to the Supreme Court must be kept secret? Let’s find out before he gets a promotion to top cop.
Photo: Evan Vucci/AP