"This lack of candor is deeply troubling because it continues a pattern of cases in which government prosecutors have failed to provide notice of FAA surveillance to criminal defendants," the defense attorneys wrote. "Because of this lack of notice, the warrantless surveillance program has never been subjected to judicial review in any public courtroom."
But the real conundrum for prosecutors: The defense is using the words of the top government attorney in the country and one of its foremost senators to make its case.
The current legal wrangling arises from one of the core legal questions about NSA surveillance programs: Who has the right to challenge their constitutionality? So far, despite all the public revelations of extensive electronic surveillance since the 9/11 attacks, no one trying to challenge the constitutionality of those programs has been able to establish standing, that basic right to have a dispute heard in court. As a result the cases have been thrown out and the constitutionality of the surveillance programs has not been subjected to a full review in court.
In the most significant of those cases, Clapper v. Amnesty International, the Supreme Court earlier this year dismissed the challenges to the FAA's constitutionality brought by the ACLU and others. But during oral arguments in that case last October, Verrilli made a concession. While he argued that the plaintiffs had no standing to challenge the law because they had suffered no harm, he also said, in response to questions from the justices, that if the evidence gathered under FAA surveillance was being used in a criminal case, then the prosecutors would have to disclose that fact and the defendant would have standing to challenge the law's constitutionality.
Justice Samuel Alito cited Verrilli's comments in his decision dismissing the case.
"If the government intends to use or disclose information obtained or derived from (surveillance authorized under FAA) in judicial or administrative proceedings," Alito wrote, "it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition."
But a few months later, in July, the New York Times called attention to two terrorism cases, one in Florida (the Qazi case) and the other in Chicago, where the prosecutors weren't following the solicitor general's lead. They were instead arguing in those cases that they did not have to disclose if secret surveillance was used in the underlying criminal investigations.
A few weeks later, the Wall Street Journal reported, the federal prosecutors in the Florida case changed course. Sort of. They filed an unsolicited brief that acknowledged a duty to disclose when evidence gathered under FAA surveillance was going to be used at trial. But they also said that there was no duty to disclose in this particular case. They listed several hypotheticals to explain their argument for non-disclosure, but they avoided naming a specific reason that applied to the Qazi case, saying that the examples given in the brief "are not intended to suggest that such circumstances are or are not present in this particular case."
In the Chicago case, where Adel Daoud is charged with attempting to set off a car bomb, the same sequence of events occurred and the prosecution's unsolicited brief was almost identical to the one filed in Florida. On Aug. 27, the judge denied the defendant's motion for disclosure of FAA evidence, accepting the government's argument for non-disclosure given that particular case's facts. But then about a week later, on Sept. 1, the judge vacated that decision after the defense protested, opening the issue back up for debate. The court has not yet issued a new ruling.
In both cases, the ultimate positions of the prosecutors was that they weren't required to disclose evidence gathered under FAA surveillance unless they intended to use it at trial.
That was the argument that Qazi's attorneys attempted to dismantle in their Tuesday filing.
The reason that the defense is so certain that FAA surveillance was used in the case is because that's what Feinstein, chairwoman of the Senate Intelligence Committee, implied in a Senate floor speech last December as she urged reauthorization of the surveillance law. She listed nine specific cases, including Qazi's, and indicated that FAA surveillance had been crucial to the investigations.
A Feinstein aide told TPM that the senator's speech was not intended to state which cases had relied upon FAA surveillance. The aide said that Feinstein couldn't make that assertion because the information is classified.
After listing the cases, though, Feinstein said this: "So I believe the FISA Amendments Act is important and these cases show the program has worked. As the years go on, I believe good intelligence is the most important way to prevent these attacks."
Qazi's attorneys seized on the contradiction between the prosecution's assertions and Feinstein's statements in the Tuesday brief.
"The government's most recent filing does not address a key fact supporting Mr. Qazi's
motion for notice: Senator Feinstein's statement, in urging Congress to renew the FAA just last year, that this controversial surveillance program contributed to Mr. Qazi's arrest and
prosecution," the defense wrote. "That is puzzling, because it is uniquely within the government's power to resolve this fundamental question. Instead, the government offers the Court a number of hypothetical scenarios in which it says notice would not be required under the statute -- but then disavows all of those scenarios."
In addition to the Florida and Chicago cases, there are at least nine other terrorism prosecutions -- referenced by Feinstein or Deputy Director James Joyce in a June 18 House hearing -- where officials said FAA surveillance was used, but that fact and the information have not been disclosed to the defendants, according to a TPM analysis of court documents in those cases. Most of those other cases are closed, but three of them are still active. Prosecutors in those cases did not respond to TPM's requests for comment.
Qazi's attorneys warned the court about the implications of the government's apparent evasions.
"The pattern that emerges from these cases is a disturbing one," the defense wrote. "It indicates that the government has, in every instance, conjured up a theory that allows it to avoid giving notice. Yet public statements by intelligence officials belie this unbroken record, suggesting that the government is in fact improperly withholding notice."
Correction: This story has been updated to identify the correct Qazi brother on whose behalf the Tueday briefing was filed.