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.

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

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Emptywheel Twitterverse
bmaz @bmaz Picture for last tweet (just because): http://t.co/5XJBgnbYOn
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bmaz If I've found on kitchen counter book titled "How To Boil Water", should I not leave one called "How To Breathe Air"??
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bmaz @TyreJim I have seen both live, and as great as Merry is, live I think Lisa Fischer is better.
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bmaz @TyreJim Yes. As I recall, she was like pregnant and asleep when the call came. Which makes what she did all the more awesome.
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bmaz .@TyreJim Either way pieces of hollow trash like Kanye West+Kardashian ought not exist is same human frame as Jagger/Richards+Clayton/Fisher
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bmaz Oh, a storm is threat'ning My very life today If I don't get some shelter Oh yeah, I'm gonna fade away War, children, it's just a shot away.
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bmaz @AZ_Dream_Killer Bad equivocation.
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emptywheel I mean I'm still winning bc I rescheduled my flights from airport bar in Beer Mecca and now am home. But they rescheduled my reschedule. :(
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emptywheel Thought I had wung this ice storm cancellation sweepstakes. Then I learned I was wrong. But at least I can sleep past 4AM.
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JimWhiteGNV RT @bmaz: Also, if you think Bibi Netanyahu is the answer to your question of enlightenment and hope for the world, you might be a blitheri…
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bmaz Also, if you think Bibi Netanyahu is the answer to your question of enlightenment and hope for the world, you might be a blithering idiot.
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bmaz Seriously, there are dumb ass pieces of demagoguery shit on both sides of the ideological divide; but fuck both without a lick of truth
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