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July 3, 2015

Democrats Hint DOJ Misled Court on Surveillance

Udall and Wyden are raising new concerns about the government's surveillance techniques. (Bill Clark/CQ Roll Call File Photo)

Udall and Wyden are raising new concerns about the government’s surveillance techniques. (Bill Clark/CQ Roll Call File Photo)

Two Democratic members of the Senate Intelligence Committee are blasting the Obama administration for potentially misleading the Supreme Court about the scope of surveillance activities back in 2012.

The New York Times reported Tuesday evening that Sens. Ron Wyden of Oregon and Mark Udall of Colorado are expressing fresh concerns that the Justice Department Foreign Intelligence Surveillance Act may have misrepresented the breadth of collections.

“The Justice Department’s reply [to earlier questions] acknowledges that the government’s collection of communications under section 702 of the Foreign Intelligence Surveillance Act includes communications that are ‘about’ targeted individuals, as well as to or from targeted individuals, and it also acknowledges that this formerly secret fact was not presented to the Supreme Court during consideration of Clapper v. Amnesty,” Wyden and Udall wrote in a Tuesday letter to Solicitor General Donald B. Verrilli Jr., the Times reported.

Wyden and Udall have been two of the Senate’s most persistent critics of the secretive surveillance activities of the National Security Agency.

Principal Deputy Deputy Assistant Attorney General Peter J. Kadzik told Udall, in a letter on Christmas Eve, that “the government acted appropriately” in avoiding disclosing the collection of communications “about” individuals, since that fact was still classified at the time of the court proceedings.

“At all times, the Department and the Office of the Solicitor General have a duty of candor in our representations to the Supreme Court, and it is a duty we take extremely seriously. The Department and the Office of the Solicitor General also have a duty to respect the classified status of information, and that is also a duty we take extremely seriously,” Kadzik wrote. “In litigation, we must take pains to avoid discussing matters that are unnecessary to the resolution of matters before the Court when those matters might disclose classified information or undermine national security, while ensuring that the Court has all of the information relevant to deciding the issues before it.”

The Supreme Court ultimately found that Amnesty International didn’t have the standing required to challenge the FISA programs in question. But the senators suggest that a 2012 reply brief in the Clapper v. Amnesty case, the Justice Department was less than forthcoming with the court about the nature of the communications collections.

“In other words, the Justice Department indicated that communications that are merely ‘about’ a target would not be collected. But recently declassified court opinions make it clear that legitimate communications about particular targets can also be intercepted under this authority,” Wyden and Udall wrote. “Since this fact was classified at the time, the plaintiffs did not raise it, but in our view this does not make these misleading statements acceptable.”

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