SG Verrilli Decided Not To Appeal Drone Memo Decision, AG Holder “Concurred”

May 20th, 2014

In the AP story, noting that the Administration will release a redacted version of the Al-Awlaki drone memo, we find this nugget:

Until now, the administration has fought in court to keep the writings from public view. But administration officials said that Solicitor General Donald Verrilli Jr. decided this week not appeal an April 21 ruling requiring disclosure by the 2nd U.S. Circuit Court of Appeals in New York and that Attorney General Eric Holder concurred with his opinion.

Recall that Verrilli made a representation to the Court in Clapper that the government would notify defendants in court if it would rely on any evidence obtained from a wiretap. This turned out to be not correct. After Verrilli learned about this apparent misrepresentation to the Court, he nudged the Justice Department, telling them this practice was illegal. And you know what? DOJ changed its position. Charlie Savage had the writeup.

The Justice Department change traces back to June, when The Times reported that prosecutors in Fort Lauderdale and Chicago had told plaintiffs they did not need to say whether evidence in their cases derived from warrantless wiretapping, in conflict with what the Justice Department had told the Supreme Court. After reading the article, Mr. Verrilli sought an explanation from the National Security Division, whose lawyers had vetted his briefs and helped him practice for his arguments, according to officials with knowledge of the internal deliberations. It was only then that he learned of the division’s practice of narrowly interpreting its need to notify defendants of evidence “derived from” warrantless wiretapping.

There ensued a wider debate throughout June and July, the officials said. National security prosecutors raised operational concerns: disclosing more to defendants could tip off a foreign target that his communications were being monitored, so intelligence officials might become reluctant to share crucial information that might create problems in a later trial. Mr.

Verrilli was said to have argued that there was no legal basis to conceal from defendants that the evidence derived from legally untested surveillance, preventing them from knowing they had an opportunity to challenge it. Ultimately, his view prevailed and the National Security Division changed its practice going forward, leading to the new filing on Friday in Mr. Muhtorov’s case. Still, it remains unclear how many other cases — including closed matters in which convicts are already service prison sentences — involved evidence derived from warrantless wiretapping in which the National Security Division did not provide full notice to defendants, nor whether the department will belatedly notify them. Such a notice could lead to efforts to reopen those cases.

Say what you will about the Obama Justice Department, but Verrilli has been an exemplary Solicitor General, in all respects.

Update: The Times report makes Verrilli’s lead on this matter much clearer.

Facing the potential defeat of an appeals court nominee, the Obama administration decided Tuesday to publicly release much of a classified memo written by the nominee that signed off on the targeted killing an American accused of being a terrorist.

The solicitor general, Donald B. Verrilli Jr., made the call to release the secret memo — and not appeal a court order requiring its disclosure under the Freedom of Information Act — and informed Attorney General Eric H. Holder Jr. of his decision this week, according to two administration officials.

The White House was informed Tuesday. But the memo will not be released right away because officials said they needed time to redact it and to prepare an appeal asking the court not to reveal classified sections of afederal appeals court ruling last month requiring that most of the memo be made public.

Holder didn’t “concur.” He was “informed.” Fascinating that this decision came from the SG. Even more reason to laud Verrilli in this Department.