Garr King, the judge in Mohamed Osman Mohamud’s case, has refused Mohamud’s demand for broad discovery into the government’s failure to notice him about the Section 702 surveillance they used to bust him.
Before I get into the substance of King’s ruling, take a look at how King dismisses the reporting–almost exclusively from NYT’s Charlie Savage–about how, upon having lied to SCOTUS, Solicitor General Don Verrilli pushed to change DOJ’s policy on notice about Section 702. Here’s King:
Defendant bases his argument, in part, on events concerning Clapper, 133 S. Ct. 1138. The Solicitor General argued to the Court that the government provided notice to defendants when evidence was derived from § 1881a surveillance. Plaintiffs had not received such notice, so the Court ruled plaintiffs had no standing to challenge the constitutionality of the FAA. Id. at 1143, 1148. Newspapers began to speculate about an internal Justice Department debate on providing notice in these circumstances. Defendant received his Supplemental Notification thereafter. [my emphasis]
That is, King dismisses clear evidence of DOJ misconduct by claiming the reporter — Savage — was just speculating.
Here’s the reporting King bases that “speculate” claim on:
Prosecutors plan to inform the defendant about the monitoring in the next two weeks, a law enforcement official said. The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said.
In February, the Supreme Court dismissed a case challenging its constitutionality because the plaintiffs, led by Amnesty International, could not prove they had been wiretapped. Mr. Verrilli had told the justices that someone else would have legal standing to trigger review of the program because prosecutors would notify people facing evidence derived from surveillance under the 2008 law.
But it turned out that Mr. Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.
Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.
The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.