Solicitor General Donald Verrilli Jr. reportedly wants more transparency concerning prosecutions under warrantless spy program. Photo: David Kravets/WIRED

Five years after Congress authorized warrantless electronic spying, the Obama administration has never divulged to a single defendant that they were the target of this type of phone or email surveillance — despite lawmakers’ claims the snooping has stopped terrorist plots and resulted in arrests.

The reason federal prosecutors are keeping mum, and perhaps violating federal rules requiring the government to tell defendants where evidence was obtained, is because such a concession would pave the way for a challenge to the constitutionality of the surveillance tactics, which Congress approved in 2008 and then again in December.

Against that backdrop, the American Civil Liberties Union filed a new lawsuit today in New York federal court against the Justice Department, demanding an accounting of the defendants ensnared under the law, known as the FISA Amendments Act, which codified President George W. Bush’s once-secret spy program adopted in the wake of the September 11, 2001 terror attacks. The suit is in response to the government not answering the civil rights group’s Freedom of Information Act request in March.

The suit (.pdf) said that the Justice Department’s failure to “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.”

The suit comes as U.S. Solicitor General Donald Verrilli Jr. reportedly is arguing internally that there is “no legal basis” for failing to disclose to defendants if they were a target of the warrantless surveillance. To be sure, there’s been plenty of defendants ensnared under the program.

http://www.wired.com/threatlevel/2013/10/fisa-amendments-act-concealing/