"In the five years since the FAA was enacted, not a single criminal defendant has received notice of the government's intent to use or disclose FAA-derived evidence," the ACLU's lawyers wrote. "The failure of these DOJ components to process and release responsive records is of particular concern because the Request relates to a highly controversial surveillance authority whose wisdom, effectiveness, and legality is a matter of intense and ongoing public debate."
As TPM previously reported, the problem of FAA disclosures in criminal cases has been vexing federal prosecutors for the last year. It started when Solicitor General Donald Verrilli assured the Supreme Court last October during oral arguments in Clapper v. Amnesty International that prosecutors would have to disclose to whether FAA surveillance had been used in compiling a criminal case against them -- and the defendant could challenge its constitutionality.
Seizing on a floor speech by Senate Intelligence Committee Chair Dianne Feinstein (D-CA) in which she appeared to refer to prosecutions where such secret surveillance had been used, defense attorneys in two ongoing cases she named then called out prosecutors for not making the disclosures to the defense that Verrilli had said should be made.
The New York Times reported Thursday on the resulting turmoil within the Justice Department. Verrilli won out, arguing that federal prosecutors had no legal basis to deny such FAA disclosure to criminal defendants, and the department plans to inform at least one defendant of FAA surveillance in a case where it has been used, according to the Times.
The ACLU lawsuit is below.