Sens. Ron Wyden (D-OR) and Mark Udall (D-CO) are questioning whether the Justice Department misled the Supreme Court in arguments in 2012 in a case the court dismissed, Clapper v. Amnesty International.
In the Clapper case, a group of plaintiffs challenged the constitutionality of the FISA Amendments Act of 2008. It permits the N.S.A. to intercept Americans’ international emails and phone calls on the domestic network and without a warrant as long as the target of the surveillance is a noncitizen located abroad.We've since learned, however, that the Justice Department was not notifying defendants when warrantless surveillance of their communications resulted in a wiretap order used to gain evidence in their prosecution. Additionally, because of the Snowden revelations and the documents that have been declassified since, we know that the NSA has scanned Americans' overseas emails without warrants and saved those emails that contained any discussion of a surveillance target—even if that target wasn't the person contacted. That directly contradicts the understanding of the law included in the Supreme Court's majority opinion, which kind of does call into question whether the government told the court everything.
The Obama administration argued that the plaintiffs lacked standing because they could not prove their communications had been intercepted. The justices voted 5 to 4 to dismiss the case.
Writing for the majority, Justice Samuel A. Alito Jr. recited two claims made by the government: The Justice Department must notify criminal defendants who faced evidence derived from such surveillance, and the N.S.A., to intercept the Americans’ communications without a warrant, must target their foreign contacts for surveillance. But both claims have come under scrutiny in the recent focus on N.S.A. activities.
Wyden, Udall and Sen. Martin Heinrich (D-NM) originally wrote to Justice last year to express their concerns over this discrepancy. The department responded to them in December that "it was appropriate not to tell the court about scanning Americans’ international emails and saving those that discussed targets, because that activity had been classified at the time and was not relevant to the legal question before the court." Wyden and Udall question that assertion in their new letter, and argue that whether or not the information was classified at the time, the government did not have the right to mislead the court.