Why Should We Believe Solicitors General about Warrantless Wiretapping

I’m working on a longer post about the arguments in Amnesty v. Clapper today.

But I wanted to point to this passage from the transcript, in which Solicitor General Don Verrilli responded to Justice Ginsburg’s suggestion that the FISA Court didn’t exercise very rigorous oversight, given that it had only ever rejected one application.

JUSTICE GINSBURG: Is there much of a speculation involved in how — I think it’s only one time, and it was under the pre-amended statute, that the FISA court ever turned down an application

GENERAL VERRILLI: Yes, but that, Your Honor, is, I think, not a fair assessment of the process. It’s really very much an iterative process in which there’s a dialogue between the executive branch and the FISA court in which the court can demand more information, raise objections. Those get worked out, and then there’s a final order.

So I don’t think it’s fair to infer from the fact that there’s only one rejection that this — that it’s a process that isn’t rigorous.

But there was evidence in the court room today to show how false such assurances are.

You see, Ted Olson was in the room. He was there to argue a copyright case heard just after Amensty v. Clapper. And as I have noted before, the government actually sent Olson–back when he was Solicitor General–to argue before the FISA Court of Review without disclosing the warrantless wiretapping program to him. He made a number of claims about how “lawful” the government’s activities were when, in fact, they weren’t.

Given that the government has lied to FISCR before, and given that Solicitors General apparently don’t get briefed on what the government does with warrantless wiretapping, is there any reason we should believe this Solicitor General about the FISA Court’s oversight?

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8 Responses to Why Should We Believe Solicitors General about Warrantless Wiretapping

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Emptywheel Twitterverse
emptywheel Abdo: Min procedures would be meaningless if Smith governed here.
3mreplyretweetfavorite
emptywheel Booyah. Abdo kills ratification "Many members of Congress not aware of program, those who were were not provided legal analysis of program."
5mreplyretweetfavorite
emptywheel Ut oh. No one brought up First Amendment, meaning no mention of Bates eliminating 1A protections last year.
6mreplyretweetfavorite
emptywheel Again, Delery, if the FISC is providing oversight, then your political branches argument fails.
7mreplyretweetfavorite
emptywheel Let's also talk abt how ODNI is still hiding dates on PRTT program bc they would reveal it lied to court in CA,
10mreplyretweetfavorite
emptywheel "What else haven't you let us know" beyond what ODNI declassified? Let's talk abt how they use phone dragnet w/EO12333 dragnet, judge!
11mreplyretweetfavorite
emptywheel Ut oh. Delery doesn't know answer to whether FISC imposed requirements beyond govt.
12mreplyretweetfavorite
emptywheel Delery's trying to have it both ways. says political branches set limit to program, but not relying on minimization procedures set by FISC
13mreplyretweetfavorite
emptywheel What's nutty as shit abt Delery's current arg is the FISC--not a political branch--sets and oversees minimization procedures.
15mreplyretweetfavorite
bmaz @bsdtectr no, but she isn't good.
15mreplyretweetfavorite
emptywheel I'm so old I remember when Justice Roberts said govt protocols (minimization procedures) not adequate to protect 4th.
16mreplyretweetfavorite
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