A closely watched case covering the constitutionality of a spying program has been thrown into disarray after a US government lawyer claimed an assertion at the heart of the lawsuit simply never occurred.
Speaking in oral argument [mp3] at the Second Circuit Court of Appeals this week, the government representative told judges that it had not used a so-called "backdoor" search to get information on the plaintiff Agron Hasbajrami, a US citizen.
Instead, he argued, the government learned about his activities from intercepted conversations abroad and then went to the special FISC spying court based in Washington DC to authorize surveillance on him.
"This is not a criminal case that arose from a so-called backdoor query," he told the judges, claiming that an earlier memorandum by a district court judge made that clear.
"Judge Gleeson establishes the order of things. In this case, the government had targeted foreign persons abroad who were discussing matters of international terrorism. After the government learned one of the communicants was a US person in New York, the government sought an order from the FISC and provided probable cause and satisfied the FISC…"
That came as news to both the appeals court judges and the defense legal team who have scrutinized Judge Gleeson's memo. It also goes against pretty much everything that had been previously heard and argued in the seven-year case.
But the fact that the government lawyer was able to assert such a wildly different series of events to the one everyone else has been assuming - and point to the "ambiguities" in the record to explain the divergence - serves to highlight just how Kafkaesque US spying programs have become.
Currently the case is focused on whether the collection of data on US citizens located in the US is constitutional given that it occurs under a law that specifically states it is only to be used for non-US citizens based abroad.
The key part of the law is called Section 702 and its novel interpretation by the security services was exposed by Edward Snowden in 2013 when he revealed the existence of two spying programs – PRISM and Upstream – that amounted to mass surveillance of the internet and phone networks.
Since then there have been repeat efforts to scale back the spying programs, most recently a Congressional battle over reauthorization of Section 702 that sought to require the US government to get warrants before searching its vast 702 database for information on US citizens.
That Congressional effort failed and so two civil society groups – the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) – have been trying to introduce the same requirement through the law courts by arguing those searches violate the Fourth Amendment on unreasonable search.
What happens is this: the US intelligence services use Section 702 to target specific foreign intelligence threats outside the United States. In the modern internet era, the government argues, communications carried out by those people outside the US actually pass through servers based in the US – and so they intercept phone and internet traffic within the US looking for information on them.
All that information is held in a database – the Section 702 database – which US government agents can then search at some future date when looking for someone. The data is stored for five years.
The problem comes when the government then argues it is allowed to search that same database for US citizens, and even that the FBI is allowed to search it for information on US citizens in connection with domestic crimes.
Civil rights advocates argue that this is a clear abuse of the Fourth Amendment and the government should have to do what it does in every other case and go to a judge, prove probable cause, and get a warrant before searching the database for information on a US citizen.
The government argues that the database already exists and has been compiled legitimately, so it does not need a warrant because it is not conducting a "new" search. While refusing to say how many US citizens' information have been swept up in the database, the US government says any information it holds on US citizens is merely "incidental" and not intentional.
The best guess is that there is more than one billion pieces of information on several hundred thousand Americans in the database.
If the government's case sounds like a series of semantic circular arguments that collapse under their own weight, that's because they are and they do. But given the topic – the identification and prosecution of criminals and potential terrorist supporters – key figures in the political and legal systems have been willing to overlook logical inconsistencies in order to preserve the capability.
This case – United States v. Hasbajrami – has therefore been held out as a way to finally get the US court system to look at the specific question of whether the gathering of data through Section 702 programs – as they currently exist - is constitutional.
In oral argument, the ACLU and EFF lawyers were repeatedly quizzed by one judge over hypothetical situations over when it would be legal to store or use information on someone; hypotheticals that the lawyers pointed out with increasing frustration were premised on the fact that initial data collection was lawful. The main thrust of the legal argument is that the initial collection in this case is not lawful.
There was a lot of discussion about legal precedents and whether they applied to the modern internet era and what legal theories could be used to make the case for greater controls on what the government does with the information it has gathered.
But the entire debate was upended when the government's lawyer effectively claimed that the entire debate was moot because it didn't carry out a "backdoor" search in this case but instead followed the correct process and applied for surveillance through the FISC court.
To say that the judges and defense were skeptical of this claim would be an understatement. But due to excessive secrecy placed around anything to do with its spying systems in the name of national security, it is difficult to know what is true.
As just one example, in an earlier case – that of Adel Daoud – a district judge took the unusual step of ordering the release of a decision by the FISA Court (FISC) to put him under surveillance (after she had viewed it in private), so his lawyers were able to see the evidence being used against their client.
The US government fought the release of those documents all the way up to the Supreme Court and won. So Daoud was convicted on the basis of evidence that neither he nor his lawyers have been allowed to see.
In this world, the government is in a position to claim pretty much anything it wants safe in the knowledge that no one will be able to prove any different. The reason the Judge Gleeson memo is of such importance is that the judge in that case was able to review the confidential material behind the matter and make his own determination. Now the government is claiming that Gleeson's memo says something different to what everyone else that hasn't seen the evidence believes it does.
It is worth noting that the three appeals court judges in this Hasbajrami case have not reviewed the confidential record - with one of them noting in court that he consciously decided not to do so there was no risk he would divulge classified information during the hearing.
And if you thought all that was weird enough, there's more: the government lawyer acknowledged in the oral hearing that while the government notified Agron Hasbajrami that he has been subject to electronic surveillance under Title I and III of the relevant FISA law when it arrested and charged him, it did not inform him until after he was convicted that he had also been put under Title VII surveillance – a reference to Section 702.
The government lawyer inferred this delay was somehow accidental and the government "regretted" it. But Hasbajrami's lawyer argued that the notice delay "wasn't accidental; it was intentional, and represented a system-wide decision not to comply with notice requirements." He asked the judges to consider: "What are they afraid of?"
What all that means is that the government appears to be using its sole possession of the full facts of the case to paint a different picture to what really happened. The government's case appears to be that it picked up information from a foreign national outside the US that implicated Hasbajrami and then – noting he was a US citizen in New York – did the right thing and went to the FISA Court, proved probable cause, got a warrant and only then searched the 702 database.
The defense is pretty sure the timeline is different: the government saw some kind of connection between Hasbajrami and the foreign national it was watching and immediately searched the 702 database for Hasbajrami. Then it used that evidence to go to the FISA Court to get a warrant.
That may seem like a small thing but it's the difference between the police being allowed to break into your house just to see if there is anything illegal, and having to get a warrant to search your house once they have persuaded a judge there is good reason to suspect something illegal. One is a police state; the other a democracy.
The government claims when it comes to electronic surveillance that both scenarios are perfectly legal. But faced with an appeals court that could decide otherwise, it has stated that the first sequence of events - where it followed long-settled law - is true.
Unknown knowns, no?
But of course, in the world of intelligence services where a seemingly clear word is given its own special interpretation, the government representative may claim that he didn't say that at all. And the defense will likely never know one way or another due to not being allowed to view the confidential record.
We spoke with one of the EFF's lawyers, Andrew Crocker, who drew up the legal brief and was present in court, to try to make sense of it all.
We started by asking him why the claim that a backdoor search wasn't used had suddenly appeared this late in the case.
"It's hard to know exactly what the government's position here is," he told us. "The lawyer for the government said that the case did not 'arise' from a backdoor search, but that isn't the same as saying no backdoor search occurred.
"The government seemed to be trying to imply that no such search occurred without actually adding any facts to the record to back that up, but the court called it out. I think at the very least the court would be wise to remand to allow the lower court to sort out the facts."
Crocker and his team remain convinced that a backdoor search was used on Hasbajrami so even if the US government succeeds in muddying the timeline of events to such an extent that it becomes hard to make sense of what happened, it is still a case of the government using unconstitutionally gathered information to pursue a case against a US citizen.
"It seems that the government had a number of Mr Hasbajrami's emails before applying for warrants to surveil him specifically, suggesting that they had not been investigating him in real time but rather searching its databases for previously acquired communications," Crocker noted.
"Our argument still applies," he said. "The court should hold that Fourth Amendment prevents the government from intercepting and retaining Americans' communications and that its use of Hasbajrami's emails was unreasonable." ®