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 TwitterShare on Reddit0Share on Facebook0Google+1Email to someone

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

  • 1
  • 2
  • 3
  • 4
Emptywheel Twitterverse
bmaz @joshgerstein I think he was indeed toast b/c of age, but may be back in play as a moderate compromise. Top of list still is Sri I think.
8mreplyretweetfavorite
bmaz @AnthonyMKreis And, really just Sri.
11mreplyretweetfavorite
bmaz @AnthonyMKreis Love kelly, but ima take your money from you. My bet is either Sri or Garland
11mreplyretweetfavorite
bmaz RT @AriBerman: This @rickhasen piece more relevant than ever: Why The Most Urgent Civil Rights Cause Of Our Time Is Supreme Court https://…
17mreplyretweetfavorite
bmaz Aw, that's nice, thanks Jack! https://t.co/vnLkBYHbjP
55mreplyretweetfavorite
bmaz I really am not a fan of Sri in the least. But at least he would break the Harvard/Yale mold so currently extant. https://t.co/wlHnzkX8iW
56mreplyretweetfavorite
bmaz @ScottGreenfield I shudder to think of where Confrontation Clause would be without him. Will always be thankful for that.
1hreplyretweetfavorite
bmaz @ScottGreenfield Hey, I found something decent to say about Scalia as well. He had some good moments to go along with the bad.
1hreplyretweetfavorite
bmaz @kevinjonheller I've never had anything good to say about Sunstein. Cause there is nothing good to say.
1hreplyretweetfavorite
emptywheel @LOLGOP "Dead-Ender"
2hreplyretweetfavorite
bmaz Well, this is some batshit crazy fearmongering https://t.co/nEES3ggcZ2
2hreplyretweetfavorite
emptywheel @amy10506 But coming from MI it's a lot easier to see how someone plays an open primary, I guess.
2hreplyretweetfavorite
July 2014
S M T W T F S
« Jun   Aug »
 12345
6789101112
13141516171819
20212223242526
2728293031