Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
So reports Sari Horwitz at the Washington Post, who learned of this effort in an interview with Attorney General Eric Holder. In Clapper v. Amnesty International, the 2013 challenge to Section 702 surveillance programs, Solicitor General Donald Verrilli represented to the Supreme Court that the government would notify criminal defendants when it planned to use evidence derived from Section 702 surveillance. Under FISA, once notified, defendants have the opportunity to move to suppress the evidence on grounds either that the information was unlawfully acquired or that it was acquired in a fashion that did not conform with a surveillance order. This requirement was one argument made in Justice Samuel Alito's majority opinion in dismissing the lawsuit on standing grounds: those against whom evidence was collected under 702 would have the opportunity to challenge the admission of that evidence. However, the New York Times reported in June 2013 that the DOJ interpreted those FISA notice requirements quite narrowly. The provisions require the government to provide notice whenever it intends to "enter into evidence or otherwise use or disclose . . . any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter." And it seemed that perhaps Mr. Verrilli's statements to the Supreme Court did not jibe completely with the DOJ's implementation of that requirement. After some back-and-forth, in which Mr. Verrilli participated, the NSD changed its policy, recently illustrated in a high-profile notice filing in a criminal case in Colorado. It is unclear how many cases in the past there have been in which information stemming from FISA surveillance intelligence may have been used, but notice was not given. The Post story explains that as the DOJ reviews its cases, defendants who should have received notice, but didn't, will be alerted on a rolling basis. And thus, defendants will get a shot at objecting to the admission of evidence, albeit belatedly for at least some.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT. Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
The FISA sunset debate isn’t just about Section 702. It’s also about the rights of Americans when outside the U.S.
Several models exist for an agreement, but reaching one will require navigating sovereignty and rule-of-law challenges.
With FISA Section 702 soon set to expire, two Senate bills and a House report frame the reauthorization debate as it comes down to the wire.