A legal filing in Florida this month adds another level to the Catch-22 surrounding the NSA's surveillance. The government can't talk about it, except when it wants to, but if talking about it threatens legal backlash, it reserves the right to ignore its admissions.
Here's the case at hand. Among those pushing hardest for a renewal of the Foreign Intelligence Surveillance Act Amendments last year was Senator Dianne Feinstein of California, the chair of the Senate Foreign Relations Committee. "I don't know that there's any program," she said from the floor on December 27, " that has more rigorous oversight." She then listed a number of arrests in which terror activity had been disrupted in an effort to advocate the utility of the rules. (The section below begins at 1:52:09 in the video.)
I have asked the intelligence committee staff to compile arrests that have been made in the last 4 years in America on terrorist plots that have been stopped. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly review some of these plots. Some of these arrests may have come about as a result of this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases.
First, in November, one month ago, two arrests for conspiracy to provide material support to terrorists and use a weapon of mass destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They were arrested by the FBI in Fort Lauderdale, FL.
She continued, outlining nine examples of arrests — a list which "goes on and on and on." Notice, though that she didn't say the Qazis' arrests stemmed from FISA, just that they may have. Details are classified. So one is left to assume that they did, or that Feinstein is simply using unconnected law enforcement successes to argue for extension of the FISA amendments.
The lawyers for the Qazis were inclined to assume it was the former, and drafted the aforementioned Florida filing, as reported by Talking Points Memo on Thursday. Referring to Feinstein's statements, the attorneys argue that the government should have to reveal whether or not evidence collected by the NSA was used to build the case against them.
How and when the government uses its classified systems to gather intelligence has itself historically been kept secret by the government (though its ability to do so suffered a setback in July). But last February the Supreme Court threw out a lawsuit filed against the government by groups including the ACLU in part because it demanded that the plaintiffs have standing. In other words, that they be people subjected to the surveillance being challenged. When the plaintiffs argued that the secrecy surrounding surveillance made it impossible to know, the government's lawyer stated that those prosecuted using such evidence would know about it. That point was critical to dismissal of the case. In August, for perhaps the first time, the government informed defendants in a criminal case in Chicago that the NSA's surveillance was included among the evidence against them. (That case was not terrorism-related and was not mentioned by Feinstein.)
But that didn't happen with the Qazis — raising implications beyond their case alone. Talking Points Memo reports:
"This lack of candor is deeply troubling because it continues a pattern of cases in which government prosecutors have failed to provide notice of FAA surveillance to criminal defendants," the defense attorneys wrote. "Because of this lack of notice, the warrantless surveillance program has never been subjected to judicial review in any public courtroom."
What the government did offer was the sort of qualification Feinstein presented: Maybe we used it, maybe we didn't. A Feinstein aide told TPM that the senator's speech "was not intended to state which cases had relied upon FAA surveillance. The aide said that Feinstein couldn’t make that assertion because the information is classified."
And that's the Catch-22. We've written before about how the NSA purposefully walks up to and over and around the lines of revealing what it does with the information it gathers, always pushing to present itself in the most positive light possible. The government talks about some disrupted plots and implies there are far more which remain classified. It declassifies key documents from the goodness of its heart, not because its responding to a lawsuit from activists. It allows a specific case to be used as evidence of its success, unless that case could also be used as the basis of a legal challenge to the surveillance system. In that case, it acts coy.
Feinstein used the Qazis as an example of why the FISA amendments were needed. The government refuses to admit that it used the amendments to prosecute the Qazis, lest the defendants bring a case back to the Supreme Court. This is not how it's supposed to work.