
DOJ lied to Supreme Court to avoid judicial review of warrantless surveillance - revelation
https://www.documentcloud.org/documents/837839-112013-clapper-v-amnesty-letter-1.html
======
rayiner
Read the questions at the end. The letter isn't fucking around:

"We believe that a formal notification to the Supreme Court of the
government's misrepresentations in the case--both relating to its notice
policy and relating to its practice of 'about' collection under Section 702 of
the FISA Amendments Act--woulcl be an important step in correcting the public
record and would be in the interests of the public as well as of the
Administration and the Supreme Court."

~~~
toufka
A nice literal example of why the US has three separate, adversarial branches
of government. When one gets a bit full of itself the other two have time to
band together to put the offender in its place before it can become truly
dominant.

Also, this is the most important part of this entire scenario - not the
spying, not the secrecy, not the internets, but the executive overreach. The
use of spying and secrecy to gain tremendous power (including over the other
branches of government). The ability for the executive to grab enough power to
coopt the legislature and deceive the courts - and get away with it. Were that
to have actually come to pass little else would have been important. It's
intriguing and relevant (for us) that this overreach was made possible by the
knowledge gap generated by rapidly advancing technology - 'trust us, we'll get
the bad guys with this newfangled technology stuff like twitters and
facebooks'. But in the end, it's just a power-grab.

~~~
VladRussian2
>The ability for the executive to grab enough power to coopt the legislature
and deceive the courts - and get away with it. Were that to have actually come
to pass little else would have been important. It's intriguing and relevant
(for us) that this overreach was made possible by the knowledge gap generated
by rapidly advancing technology

while it make the events relevant to this audience, the technology involvement
is a red-herring here as history is full of examples where executive branch
was able to perform the power-grab utilizing the technology of the time,
frequently an absolute power-grab and with wide popular support in the name of
"the greater good" as perceived at the time by the populace. In its current
form technology allows to minimize direct violence required to perform the
grab, it allows to stretch and smooth the shock of the transition.

~~~
arca_vorago
I've been saying this for a long time, but pre-Snowden I was always met with
heavy deference of trust for the checks and balances system. I claim that
there has been a backroom debate in the higher level Military Industrial
Intelligence Complex (Top tier NSA, CIA, DoD, Pentagon, NSC) in which it was
concluded that technology has created a potential for a single non-state
entity to cause massive damage, and that "Total Information Awareness" is the
only way to prevent it.

Of course, I disagree that the purpose of TIA is security, and I also disagree
that it is even successful, but the real issue at hand is beyond that, and is
about how the debate was had and who was involved. There was no public debate,
and any that did leak was tightly brought under control (with NSL's etc). This
is an affront to the democratic process imho, but even if one were to argue
that our representatives were involved, I would say there has been a
stratification of the congresspeople, so that only a select few people on a
select few committees even get to participate, and even then the ones who do
are unable to grasp the subject matter fully. Of course no staffers get to see
it either.

With the knowledge of how intel agencies work, and more specifically, the
contact sport of politics in the beltway, I would also venture to say that
even if a fairly principled rep did make it on a relevant committee, though
would quickly be brought back under control via the standard methods.

I won't get off too far into this rabbit hole, lest I am accused of conspiracy
theory, but I truly think the system of checks and balances is not only
crumbling, it is in ruins. Even worse, a facade is being put up to cover it
up.

~~~
nknighthb
Checks and balances are alive and well. No system of governance will prevent
an action if everyone in that system supports it, nor should it.

We are the problem, we keep electing people who support this crap.

~~~
newman314
Correction: we keep allowing political parties to give us less than ideal
candidates that combined with the first-past-the-post election method ends up
having people voting for what they perceive to be the least evil candidate and
not an actual representation of, for and by the people.

~~~
rayiner
First past the post election system is a problem, but the fact is that only a
hip minority of people vote for what they perceive to be the "least evil"
candidate. I went to grad school in Chicago, and all the people I know who
support Obama genuine think he's a great candidate. Maybe not their ideal
candidate, but one they can get behind that they think will be able to build a
coalition.

If you look at American policy, it's closely representative of the views of
typical voters. High levels of welfare spending for the middle class (i.e.
Social Security and Medicare?) What could be more representative of a voting
population that consists to a large degree of middle aged middle class folks
nearing retirement who won't be burdened with the bill? Foreign wars? How many
liberals urged Obama to intervene in Syria even after their ostensible
opposition to Iraq? How many liberals supported arming Syrian rebels after
complaining for years about arming anti-Taliban forces in Afghanistan? On
either side of the aisle, Americans are broadly willing to resort to military
solutions. The drug war? I grew up in the 1990's and remember being surrounded
by suburban soccer moms who thought drugs were more evil than Hitler. The drug
war was built on a solid coalition of social conservatives and Reagan
Democrats that's only now chipping at the edges as a younger generation
becomes parents themselves.

First past the post has notable theoretical weaknesses, but that weakness
tends to be entrenching the voice of the mainstream consensus, to the
exclusion of minority viewpoints.

Americans love to bitch about the government, but very few would change
anything in a substantial way. They argue over issues at the edges because
that's the only thing they disagree about. They might disagree with the amount
of penalty BP should receive, but people on the right don't want to get rid of
the regulatory regime surrounding oil drilling, nor do people on the left want
to abandon drilling entirely.

~~~
dTal
It is true that, by and large, public opinion has a massive effect on policy.

The problem with democracy as it exists today is that policy also has a
massive effect on public opinion - i.e. propaganda is effective. So it's not
an effective check on power.

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fleitz
I wish someone could make a treason case out of perjury in relation to a
matter of national security during a time of war for these actions.

This crap would stop pretty fast.

~~~
rayiner
Let's not go there:
[http://www.heritage.org/constitution/#!/articles/3/essays/11...](http://www.heritage.org/constitution/#!/articles/3/essays/119/treason).

The U.S. hasn't convicted someone of treason for more than half a century.
Even John Walker Lindh, who was literally fighting with the enemy against the
U.S., was not prosecuted for treason.

~~~
latj
Ok fine, but can we at least fire people who lie to Congress and then admit
it? What is the point of Congress asking questions if you are allowed to
testify in the least untruthful ways?

~~~
twoodfin
President Obama can fire anyone in his administration any time he would like.
That's how accountability works in our system, particularly when no clear-cut
crime is committed. If President Obama doesn't sufficiently share your
outrage, fundraise, campaign and vote for someone who you think would.

~~~
Silhouette
_If President Obama doesn 't sufficiently share your outrage, fundraise,
campaign and vote for someone who you think would._

Why, so you can stop President Obama being elected for a third term?

To me as an outsider, this is a puzzling part of the US political system. The
President has a huge amount of concentrated power within one branch of
government, yet approximately half the time, the President of the day is
effectively a lame duck with nothing to lose by behaving almost any way they
like. Other parts of the government can make that President's job harder, but
short of impeachment everyone is basically stuck with whoever it is until
their time is up.

I increasingly feel that giving the electorate an absolute power of recall if
an elected representative angers enough people during their term would change
politics for the better at almost any level. Otherwise, any term of office
that is sufficient for reasonable medium- to long-term planning is also
sufficient to allow serious damage to be done with relative impunity if the
wrong person won the election but the voters only learn that after the fact.

As a side benefit, this also balances the tendency for major elections to be
fought on a tiny number of headline issues, with little if any incentive to
represent the electorate's interests in all the other significant-but-not-
dominant areas, because if you annoy too many small groups of the population,
collectively they can become powerful enough to trigger a vote.

~~~
twoodfin
Democracy is all about giving the people what they want, good and hard. I'm
sorry they got it "wrong" from your point of view last year, but in three
years they get to try again.

I don't think your version of "serious damage" from this issue matches most
voters. Even if this were a parliamentary system where sufficient public
outcry could force new elections, or a "do over" recall was available (a
terrible flaw in the state constitutions where it exists, IMHO), you'd still
not be getting the U.S. administration you seem to want. You need to convince
the public and then win elections, that's how change happens.

~~~
Silhouette
Please note that I didn't express any opinion on the specific situation in the
US today. I was just commenting that the checks and balances you implied in
your previous post, where a senior individual in the government can choose to
fire more junior individuals, don't seem to be very reliable if the senior
person themselves has limited motivation to act in the interests of the people
they are supposed to represent.

This lack of direct motivation is a systemic weakness in almost any electoral
system that involves fixed terms of significant length, and it applies more
generally than just the need to choose appropriate subordinates. What you
described just happens to be one ineffective case that is relevant to the
current discussion.

------
Zikes
This sounds important, but I'm at a loss as to its significance.

What was Clapper v Amnesty?

It sounds like Solicitor General Verrilli made a lie of omission in the court.
Is that considered a lie under oath?

What obligation does Solicitor General Verrilli have to the three Senators to
answer their questions? What consequences might he face if he choose to ignore
the letter?

Realistically, what could this mean for the original Clapper v Amnesty case,
and how might it affect the public in general?

~~~
DannyBee
"It sounds like Solicitor General Verrilli made a lie of omission in the
court. Is that considered a lie under oath? "

Actually, AFAIK, this is incorrect. I'm trying to find a later article i read
a few days ago, but apparently Verrilli was not aware of any of this when he
made statements at oral argument, and once he became aware, he fought a large
internal fight to make sure his statements about giving defendants evidence
stayed accurate.

Ah, here we go. At least for the first part of what I said, see
[http://www.nytimes.com/2013/10/17/us/politics/us-legal-
shift...](http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-
open-door-for-challenge-to-secret-wiretaps.html)

"The move comes after an internal Justice Department debate in which Solicitor
General Donald B. Verrilli Jr. argued that there was no legal basis for a
previous practice of not disclosing links to such surveillance, several Obama
administration officials familiar with the deliberations said."

(and about the oral argument prep failure here) "As a result, Mr. Verrilli
sought an explanation from national security lawyers about why they had not
flagged the issue when vetting his Supreme Court briefs and helping him
practice for the arguments, according to officials."

So

A. It seems he wasn't aware

B. Once he was aware, he put a stop to the practice.

Now, this doesn't excuse any of what has happened here, but as far as anyone
knows, he didn't intentionally mislead anyone.

Note that unlike a lot of folks involved in all of this, Donald Verrilli is
the least likely to be involved in anything hinky or lie to a court. He's a
true believer in the system.

~~~
zaroth
How else would you expect Verrelli to explain what happened once it became
obvious what he told the Supreme Court was not true?

It's the solicitor general's responsibility, as it is anyman's responsibility
when testifying in court, to ensure his testimony is accurate. He didn't say,
"as far as I know, this is what I think we might collect."

The Government made a persuasive argument that collection was limited
specifically to the extent required to dismiss the case. This was not an
honest mistake, it was a material misrepresentation of fact. There is no
plausible deniability here.

I think it's appropriate to discuss what the ramifications should be, but it's
naive to think Verrilli was not aware. I think it's also reasonable to
question whether Chief Justice Roberts was also aware Verrilli was shoveling
shit, seeing as how he appointed every judge currently serving on the FISA
court.

~~~
DannyBee
"It's the solicitor general's responsibility, as it is anyman's responsibility
when testifying in court, to ensure his testimony is accurate. "

While true, i'm not sure what you expected him to do here. He asked and
checked with his prosecutors. They told him they were doing something that
they were in fact not doing.

I guess I wouldn't expect the guy to personally check all of the many
prosecutions here. There has to be some level of trust allowed for. At that
point, I would just expect him to correct it if he was wrong.

"I think it's appropriate to discuss what the ramifications should be, but
it's naive to think Verrilli was not aware."

So this i just flat out disagree with. You are basically calling him a liar
who is covering his ass.

Talking with people who know him quite well, i'm basically told he would never
do such a thing, and that he did in fact, do what the article says. With all
due respect to your opinion, i choose to believe them over you :)

If that makes me naive, so be it.

(FWIW: I certainly don't expect you to trust me on this, i'm just explaining
why I hold the opinion I do)

~~~
Zigurd
> _He asked and checked with his prosecutors. They told him they were doing
> something that they were in fact not doing._

He is responsible for that. Either the individuals who induced him to commit
perjury should be prosecuted, or, if he cannot reveal who those people are or
is unwilling, then Verelli is just as guilty.

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w1ntermute
Unless some high-level DoJ and NSA officials are thrown in jail for a couple
decades for all this, it's not going to stop.

~~~
ScottBurson
I'm not sure that matters very much. It will stop when Congress votes to
defund it.

As long as it's perceived as the will of the American people, as expressed
through their elected representatives, it will continue.

Alas, I see no sign that Dianne Feinstein is likely to lose an election
anytime soon.

~~~
gizmo686
The problem being discussed is individuals lying to the supreme court.
Congress (to my knowledge) has never authorized anyone to lie SCOTUS. What is
happening is that is that these institutions are getting away with lieing to
the Judicial branch, because the Judicial branch is letting them.

If there happens to be something in the law authorizing people to lie to
SCOTUS, then I suspect SCOTUS could strike that part of the law down.

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salient
Don't expect Holder the _Untouchable_ to ever be punished for this. At this
point I think he's more untouchable than even "Emperor Alexander", the current
(and soon former) chief of NSA.

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zcarter
Lawyers: What precedent is there for supreme court decisions citing a specific
piece of evidence as the basis for their ruling, where that piece of evidence
is later shown to be erroneous?

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jstalin
I know the words "ethics" and "lawyers" don't generally enters people's minds
at the same time, but the model rules of ethics for lawyers take this sort of
thing seriously. If the Senators show that some lawyers did indeed lie to the
Supreme Court, the Court itself could take action on those attorneys'
licenses. It's also a lawyer's duty to report if they are aware of another
attorney's violations of ethical rules.

I know it's doubtful, but one can hope.

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tsaoutourpants
These three Senators have realized that they can capitalize on public
sentiment against the NSA.

Good on them... that's what representing the people is about.

~~~
intslack
Ron Wyden and Mark Udall have been talking about it for years; Ron Wyden in
particular went to the floor of the senate and talked about how the American
people would be shocked if they knew how the PATRIOT Act was being
interpreted.

~~~
MysticFear
Not to mention Wyden was the one who asked James Clapper the questions that
lead him to lie to Congress. Still have no idea why Clapper still holds his
position.

[http://www.youtube.com/watch?v=nsmo0hUWJ08&t=33s](http://www.youtube.com/watch?v=nsmo0hUWJ08&t=33s)

~~~
CamperBob2
Do some reading about J. Edgar Hoover and you'll understand why Clapper still
holds his position.

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mvanga
Would someone be willing to provide the background, interpretation and
ramifications of this document for someone not very familiar with this case?

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VladRussian2
just to put things in perspective - is is any surprise that people who is ok
with torture would lie? Why would someone expect it different?

------
adultSwim
Warm Regards

