PCLOB Ignores Glaring Section 702 Non-Compliance: Notice to Defendants

I will have far more to say about PCLOB once I finish my working thread. But there’s one glaring flaw in the report’s claim that the government complies with the statute.

Based on the information that the Board has reviewed, the government’s PRISM collection complies with the structural requirements of the statute.

But here’s the report’s discussion of what happens with aggrieved persons — those prosecuted based in information derived from Section 702 information.

Further, FISA provides special protections in connection with legal proceedings, under which an aggrieved person — a term that includes non-U.S. persons — is required to be notified prior to the disclosure or use of any Section 702–related information in any federal or state court.447 The aggrieved person may then move to suppress the evidence on the grounds that it was unlawfully acquired and/or was not in conformity with the authorizing Section 702 certification.448 Determinations regarding whether the Section 702 acquisition was lawful and authorized are made by a United States District Court, which has the authority to suppress any evidence that was unlawfully obtained or derived.449 

But for 5 years after the passage of the law, the government never once gave defendants notice they were aggrieved under Section 702. It lied to the Supreme Court about not having done so. And even while it has since given a limited number of defendants — like Mohamed Osman Mohamud — notice, there are others — David Headley, Najibullah Zazi and Adis Medunjanin, and Khalid Ouazzani — who are known to be aggrieved under Section 702 who have never received notice. Finally, there is the case of the Qazi brothers, which seems to be a case where the government is parallel constructing right in the face of the magistrate.

PCLOB said that the government is generally in compliance with the statute. And yet, it made no mention of known, fairly egregious violations of the statute.

That suggests the report as a whole may be flawed.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+0Email to someone

4 Responses to PCLOB Ignores Glaring Section 702 Non-Compliance: Notice to Defendants

  • 1
  • 2
  • 3
  • 4
Emptywheel Twitterverse
bmaz @McBlondeLand @DylanByers So ABC DID pay for Wilson's honeymoon then?
2mreplyretweetfavorite
bmaz @APribetic @gideonstrumpet Meh, you two look petit to me.
19mreplyretweetfavorite
bmaz @foolintheforest I have interacted with her a couple of times and really liked her. @ScottGreenfield @windypundit @gideonstrumpet
21mreplyretweetfavorite
bmaz @BlanksSlate Yeah. I have NO IDEA, but we are bringing in the hedgerows, mortars and storm troopers to protect!
37mreplyretweetfavorite
bmaz RT @Katie_Speak: I'm really tired of calling @BlueShieldCA trying to figure out the glitch keeping me from having insurance that supposedly…
38mreplyretweetfavorite
bmaz @ryanjreilly Man, you are good looking after that trim!
38mreplyretweetfavorite
bmaz @mashable @GregMitch @stltoday Perhaps you can explain how that can be w/out court permission after time for interested parties to challenge
43mreplyretweetfavorite
bmaz @trabernlaw @gideonstrumpet I love that Trace is kind of back. Man I hope things are good in Santa Fe. Gorgeous time of year up there.
47mreplyretweetfavorite
July 2014
S M T W T F S
« Jun   Aug »
 12345
6789101112
13141516171819
20212223242526
2728293031