ACLU: Government’s Empty Promise To Tell Defendants They’ve Been Spied On


The American Civil Liberties Union (ACLU) celebrated a small court victory — really, more of a concession — in a Tuesday article, lauding the government’s decision to honor a pledge it had made before the Supreme Court to notify criminal defendants if evidence obtained under the Foreign Intelligence Surveillance Act (FISA) is brought against them in court.

Watching United States v. Qazi, an obscure Florida case, the ACLU observed that the government had admitted it is obligated to inform defendants of any evidence prosecutors had gained through surveillance conducted under provisions in the FISA Amendments Act (FAA).

ACLU called that admission an important concession. But the ACLU noted the government was essentially admitting it would, from now on, police itself and act on faith. The idea of relying on the government’s self-restraint illustrates “several significant qualifiers that highlight a larger problem,” the civil liberties group noted.

Because only the government has the power to prosecute, it ultimately controls which defendants — if any — have the opportunity to challenge the FAA. Thus, the government can continue to avoid court review of the statute by choosing not to use FAA-derived evidence at trial, by offering impossible-to-turn-down plea bargains or, in the extreme case, by abandoning prosecutions that risk an adverse ruling. In our legal system, judicial review should not occur only at the grace of the executive branch.

An even more troubling possibility exists. Reuters reported yesterday that law enforcement agents may be actively seeking to conceal the source of evidence derived from NSA surveillance, in order to avoid court challenges.

It’s a relatively safe bet that any amount of forthcoming contrition or self-policing on the part of the Feds over the extent to which law enforcement can unConstitutionally and furtively deploy its massive panopticon machine is momentary — a pre-emptive damage control measure to demonstrate that, amid spy scandal after spay scandal, it can be trusted. People’s eyes are focused on Big Data and Big Brother right now, so now’s the time for Big Brother to throw the media a bone. It won’t last. In fact, it’s meaningless in the present context of every other extraordinary Federal abuse of due process.

ACLU points out that, for every tiny step forward, there’s an enormous leap backward:

Another report indicates that the NSA may have referred as many as 30 non-terrorism criminal cases to the Department of Justice based on information it obtained through electronic surveillance. Yet, to date, not a single defendant has received notice of prosecutors’ intent to use FAA-derived evidence.

If law enforcement agencies are manufacturing an “independent” basis for their criminal investigations in order to conceal their reliance on NSA surveillance, that practice violates both the letter and the spirit of the law. Criminal defendants have the right to know when the government’s evidence is derived from the NSA’s interception of their communications, so that they can test the lawfulness of that surveillance. Judicial review of the government’s warrantless wiretapping program should be more than a hypothetical promise to the Supreme Court.

Personal Liberty

Ben Bullard

Reconciling the concept of individual sovereignty with conscientious participation in the modern American political process is a continuing preoccupation for staff writer Ben Bullard. A former community newspaper writer, Bullard has closely observed the manner in which well-meaning small-town politicians and policy makers often accept, unthinkingly, their increasingly marginal role in shaping the quality of their own lives, as well as those of the people whom they serve. He argues that American public policy is plagued by inscrutable and corrupt motives on a national scale, a fundamental problem which individuals, families and communities must strive to solve. This, he argues, can be achieved only as Americans rediscover the principal role each citizen plays in enriching the welfare of our Republic.

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  • vicki

    I have but one question for government officials.

    Were you lying to us then or are you lying to us now?

    • Harold Olsen

      Their answer: Yes.

    • rivahmitch

      The more relevant question is whether anyone would/should/could believe their answer.

    • VashtheStampede

      better yet which lie do you want us to believe

  • hardh8

    We can all come on these web sites and whine all we want. It isn’t going to amount to a hill of beans. We all know what’s going on. Unless and Until we stand up and stand together, these things are going to continue to get worse ad worse.

    • chocopot

      Agreed. And do not count on the ACLU to help. They have an agenda of their own. You should read up on their history to understand that agenda. The ACLU was formed right after WW1, when Lenin flooded this country with Soviet agents and recruited Americans who wanted a communist takeover of this country. Their goal was to sabotage and undermine the government. The ACLU was formed by lawyers sympathetic to the Soviet cause to defend those caught spying or committing treason in their efforts to advance a communist takeover. Nothing much has changed in the intervening years. Despite their high-sounding name, they choose only those cases that will advance their agenda and their cause, which has not changed one bit.

      • mark

        Correct, the ACLU stands up over and over again for the U.S. Constitution and the Bill of Rights especially the 1st Amendment. That is why conservatives despise them. Because they reveal the overwhelming hypocrisy of so many conservatives in this country who only want Constitutional rights for white men and no one else.

        • chocopot

          The ACLU is today what it has always been: a front for the communists who want to take over this country. Keep hallucinating with your left-wing fantasies.

  • 1baronrichsnot1

    ACLU for help? Is there any doubt that this is a corrupt liberal/communists organization. They defended the gov’t and bragged on them for admitting that americans should be told after the fact, that they have been spied upon, right before SCOTUS? Sound like a reputable bunch to anyone else? All we have to do is not pay our taxes, as a people, in the millions, no pay until we get our uncorrupt government back and the theives and criminals out of washington.

  • mark

    The ACLU often helps women and minorities to fight against unjust discrimination in our society. Therefore we know how the majority of posters feel about this organization even when it fights the U.S. government in behalf of all of our rights to privacy and free speech. The posters here reject the ACLU completely no matter what it does to defend the Constitution and especially the Bill of Rights. This is why the Democratic Party will have such a lock on the White House and the Senate for so many more election cycles to come. Because without women, minorities, and many more educated whites, the Republican Party can never win the White House or the Senate.

    • chocopot

      Another of the indoctrinated sheeple.

  • Michael Shreve

    The idea of relying on the government’s self-restraint is farcical at best. Frankly government RESTRAINT is an oxymoron.