The American Civil Liberties Union is suing the Department of Justice in regards to whether a criminal suspect was placed under NSA surveillance.
On Thursday, the ACLU filed a Freedom of Information Act lawsuit to obtain the U.S. government policy for notifying criminal defendants that they are being monitored by the government.
The lawsuit is meant to enforce a FOIA request for the information in March, which the ACLU filed after the Supreme Court dismissed a lawsuit in February over warrantless spying under the FISA Amendments Act of 2008.
The court dismissed the lawsuit because in addition to assurances made by the federal government, the court said that plaintiffs could not prove they had been spied upon.
“The government assured the court that criminal defendants who were actually monitored under the program would be told,” wrote the ACLU, “giving them the opportunity to challenge the law.”
That claim was later challenged by a Thursday New York Times report stating that the DOJ had not been notifying defendants, and that it changed its policy going forward.
“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,” said Patrick Toomey, staff attorney with the ACLU National Security Project.
Toomey said that the ACLU hopes the policy reversal reported by the New York Times will be a change for defendants.
“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,” said Toomey.
“This FOIA lawsuit aims to reveal how the government justified keeping defendants in the dark about evidence based on NSA surveillance, and what the policy is today,” he said.