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?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

8 replies
  1. bsbafflesbrains says:

    Short Answer, No. Unless all your questions regarding trust relating to Government agencies come with the No imbedded in the question. :)

  2. emptywheel says:

    One thing I should have noted: by report and–to a lesser degree, according to the transcript–Kagan was the most aggressive questioner here.

    Which raises the question–how much does she know about the warrantless wiretap program? And would knowledge–or lack thereof–lead her to ask more aggressive questions?

  3. Arbusto says:

    As I wrote elsewhere:

    …Chief Justice John Roberts stated “It was not enough to get a lawyer into court that the government was actually using its expanded surveillance authority; the lawyer also had to show that sensitive conversations were being tapped.

    So our Chief Justice(?) sees no harm in the use of illegally obtained or otherwise privileged communication if the government uses said communications to construct a case, as long as the defense doesn’t know it was specifically targeted, which of course they can’t since the government wouldn’t let it be known. What a legal scholar he is.

  4. scribe says:

    It wasn’t the first time the government’s Solicitor General was punked by the government, if we are to believe the SolGen after the fact. Remember that Paul Clement argued to the Supreme Court, in the original Hamdan case, that the government didn’t torture.

    The next day, the Abu Ghraib pictures were all over the media.

  5. Courage says:

    can you see any usa mainstream corporate “journalist” doing this to any of the usa 1% ???? LOLOLOLOL

    Greek journalist in court for revealing names of potential tax cheats

    Greece bank leak reporter Costas Vaxevanis sent to trial

    List of Swiss Accounts Turns Up the Heat in Greece

    god, the usa government would DRONE any usa person who revealed this kind of information!!!

  6. pdaly says:

    Maybe Kagan should ask if the government ever eavesdropped on Kagan’s or any of the other Supreme Court Justices’ communications.

    If the government’s Solicitor General won’t answer her question that would be a quick way to get to the point of this crazy warrantless surveillance.

    However, if the Solicitor General was to answer, “No” would that be at all reassuring? And would it be the truth?
    How would the Justices know?

  7. bmaz says:

    @emptywheel: I dunno, it may also be a cheap way for Kagan to make some hollow bones. I don’t put much value in Kagan running her mouth a little here.

    Kagan is smart enough, and craven enough, to take advantage of a cheap opening to do so on such a visible case without ever having to cast a meaningful vote in anger. I am not buying squat as to Kagan. Nope, not gonna do it.

    Kagan can hide in the shadows because AMK will, again, be the swing.

    Better question is, if AMK won’t swing left, what will Kagan do? Beef up her “centrist” bonafides on a law and order issue she intellectually could easily go right with, or cast an equally meaningless vote to try to paint a false “liberal” facade for herself?

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