ACLU Sues to Get Policies and Records on Use of NSA Surveillance in Criminal Cases

"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.

See PDFs, or

The FOIA request is at:
aclu.org/national-security/foia-request-seeking-policies-and-records-use-nsa-surveillance-criminal-cases

The lawsuit complaint is at:
aclu.org/national-security/nsa-criminal-defendant-notification-foia-complaint

https://www.aclu.org/national-security/aclu-sues-justice-department-get-policies-and-records-use-nsa-surveillance
https://www.aclu.org/