The government said it would notify defendants that were the subjects of those surveillance programs, but news reports indicate that has not been happening, the ACLU said, explaining its decision to file Thursday’s lawsuit.
It’s clear that the government is using NSA surveillance information in criminal cases, as evidenced by congressional testimony by FBI Deputy Director Sean Joyce and statements from Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.), the ACLU said in the lawsuit. Both have defended NSA surveillance programs by citing examples of cases where surveillance has aided criminal investigations.
"The Justice Department told the Supreme Court that review of the surveillance law would be possible, but then made it impossible by keeping who was spied on a secret, even from defendants who had a legal right to know,” Toomey said.
"By failing to tell defendants that they had been surveilled by the NSA under the FISA Amendments Act, the government effectively shielded its warrantless wiretapping program from judicial review.”
The lawsuit seeks to enforce the ACLU’s Freedom of Information Act form March and asks for the government to explain its notification policy as well as provide information on the cases that have involved NSA surveillance in the past.