Who Did the NSA's Illegal Spying Put in Jail?

Last week, the ACLU joined a constitutional challenge to the FISA Amendments Act of 2008 (FAA), the statute that allows the NSA to engage in dragnet surveillance of Americans' international phone calls and emails. With the Federal Defenders Office, we filed a motion on behalf of Jamshid Muhtorov, the first criminal defendant to receive notice that he had been monitored under this controversial spying law. But Mr. Muhtorov received this notice only after the Department of Justice (DOJ) abandoned its previous policy of concealing FAA surveillance in criminal cases — a policy that violated both the statute itself and defendants' due process rights.

For criminal defendants and for the country, it's good news that the government is reviewing criminal cases in which FAA evidence has played a role. But the FAA is just one surveillance program among many. And given what we now know about the DOJ's unlawful notice policy, we should be asking whether the government has concealed in criminal prosecutions its use of other mass surveillance programs.

Let's start with the NSA's internet-metadata program. That program involved the NSA's bulk collection of records about Americans' online activity between 2001 and 2011. Under this program, the NSA vacuumed up information such as the "to" and "from" data in emails and, in all likelihood, the addresses of websites visited by Americans.

As Brett Max Kaufman and I have described elsewhere, the program has a problematic past. It was secretly authorized by President Bush in 2001 and then belatedly approved by the Foreign Intelligence Surveillance Court (FISC) in a secret opinion, recently declassified, that has been heavily criticized. In particular, the FISC found that bulk collection of Americans' internet metadata was permissible under FISA's pen-register and trap-and-trace provision (PR/TT). The program was reportedly discontinued in 2011 for "operational and resource reasons" — but only after the NSA had tracked Americans' internet activity for a decade.

It doesn't take much to imagine that, over those ten years, some of that internet data made its way into criminal investigations and prosecutions. Indeed, we know that the NSA collected huge volumes of metadata under this program, that it routinely pools its various streams of data in order to conduct "contact-chaining," and that it often feeds tips or leads to the FBI and even the DEA.

If the internet-metadata program did contribute to criminal prosecutions, the government had a duty to tell defendants. That's because FISA's PR/TT provision includes a notice requirement. Notice is also a matter of basic due process, because defendants have the right to test whether the government obtained its evidence against them lawfully.

The government has never told a criminal defendant that the internet-metadata program supplied evidence for a prosecution — but, as the FAA experience makes plain, that doesn't mean it didn't happen. We know that for five years the government violated an identical notice provision in the FAA, adopting a self-serving interpretation of the law that allowed the government to effectively circumvent the notice provision altogether. Indeed, after learning of DOJ's FAA notice policy, the solicitor general reportedly concluded that it "could not be justified legally."

It seems likely that the government embraced the same flawed legal theory with respect to notice and evidence derived from the internet-metadata program. If so, then criminal defendants were almost certainly left in the dark — and were very likely convicted with the help of this evidence.

If that's the case, those individuals went to prison without having a chance to test the legality of the government's bulk collection of their internet records — a program that, from its inception, stood on precarious legal ground. Any failure to provide notice would have been a violation of those defendants' due process rights, calling their convictions into question. Let's hope their cases are part of the Attorney General's ongoing review.

Learn more about government surveillance and other civil liberty issuesSign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Add a comment (3)
Read the Terms of Use

Anonymous

A cell phone can be stopped from tracking and spying if it is placed in a Faraday Cage. A Faraday cage is a metal or conductive envelope that completely surrounds the electronic device and stops signals from going into or out of the cage.This can be accomplished by making a pouch out of a metallized ie conductive fabric. Search youtube for detracktor for a demonstration.

Vicki B.

I don't believe this shit. I don't believe what they've DONE in the name of my dead relative. I can't believe how gd far they've gone.

All this behavior IMO has turned his death into the highest mockery of all time.
There are just no adequate words to describe what a terrible thing they've done.

How am I supposed to continue to tell my daughter all these things the government decided to do and then use her dad's death to justify it? She got upset when I told her we're probably NOT going to get to see any of the Guantanamo trial for the people who are suspects in the incident.
I told her that maybe SHE'LL be able to b/c she's directly related to him instead of how I was no longer LEGALLY related, but I added that I'm not completely SURE of that. I didn't want to get her hopes up.
We weren't allowed to see Osama bin Laden's photo after he was killed. Why would we be able to do this? And anything WE get the public seems to ALSO get - unless you're at the 9/11 Memorial and even then we get only TOKEN perks - which has always upset me b/c the "public" is always telling US "We're grieving right along WITH you."
First of all, no they're NOT. They didn't even know him. They're grieving as Americans not family members. I also think family should get this information before media members but they've disappointed us SEVERAL times in THAT area. Even the Memorial did THAT to us. They let media see it before family members when it first opened.
My daughter was also upset that she didn't get to look at Bin Laden's final photo but I refuse to elaborate on it other than to say her reason was similar to mine.

Now the government appears to be guilty of doing all this other stuff and we STILL don't get to know what the hell's going on. We have to keep hearing about it from someone OTHER than the government.
I didn't think ACLU was part of the government. NObody in the government will tell us ANYthing. It's really freakin' annoying.

family member o...

I don't care how many BLACK BOXES you people keep in your information that you're being forced to show people now.
You're NOT getting away with this shit. No matter what you do to try to hide it you're NEVER getting away with it.

Sign Up for Breaking News