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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bmaz @ScottGreenfield Have I violated the Logan Act?
bmaz America’s oldest vet is turning 109. He celebrated with cigars and burgers. http://t.co/jz0aMyySXY Great story, about a truly great man.
bmaz @BlanksSlate I just had to ask!
bmaz @ScottGreenfield I could kiss you for this. #NoHugsThough
bmaz Police groups outraged at how fast Baltimore 6 who killed #FreddieGray were arrested+charged. Same outrage at speed on Officer Moore killer?
JimWhiteGNV Some Progress Is Reported in Informal Afghan-Taliban Talks http://t.co/Kcao1zSLY5 But don't call them "peace talks"!
bmaz Excellent background by @shephardm on Omar Khadr's relentless and dedicated attorneys https://t.co/qJVL8rd844
bmaz @emptywheel And the related misconduct by DOJ attorneys to bring this within OPR jurisdiction is....what? Things LA Times doesn't say.
emptywheel @HectorSolon @JRubinBlogger apparently doesn't know citizens having to referendum on pothole fixes bc under Snyder's leadership he couldn't
bmaz @PGEddington Ugh, yes, and on so many fronts.
emptywheel Shorter DOJ: We're concerned abt handslaps DEA Agents getting but we're going to refer it to handslap specialist OPR. http://t.co/2ewTAsrStw
emptywheel Maybe we should start drone assassinating treadmills? http://t.co/SZhDC1Hy7e
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