Justice Dept. Criticized on Spying Statements

WASHINGTON — Two Democratic senators accused the Obama administration on Tuesday of seeking to “ignore or justify” statements it made to the Supreme Court about warrantless surveillance by the National Security Agency, contributing to what they called a “culture of misinformation” by the executive branch.

In a letter to Solicitor General Donald B. Verrilli Jr., the senators, Mark Udall of Colorado and Ron Wyden of Oregon, maintained that the Justice Department was not being forthright about what they portrayed as factual misrepresentations to the Supreme Court in 2012. The case involved a challenge to the constitutionality of a law permitting warrantless N.S.A. surveillance.

The senators’ message was a response to a letter that the Justice Department sent them in December defending its conduct in the surveillance case, Clapper v. Amnesty International, in part because certain aspects of N.S.A. spying had been classified at the time. The department’s letter had not been public, but Mr. Udall’s office provided it to The New York Times on Tuesday.

Together, the letters added to a growing public record of some of the legal frictions that have followed the increased scrutiny of N.S.A. surveillance practices set off by the leaks from the former contractor Edward J. Snowden.

The Justice Department was reviewing the senators’ letter and declined to comment further, said Brian Fallon, a spokesman.

In the Clapper case, a group of plaintiffs challenged the constitutionality of the FISA Amendments Act of 2008. It permits the N.S.A. to intercept Americans’ international emails and phone calls on the domestic network and without a warrant as long as the target of the surveillance is a noncitizen located abroad.

The Obama administration argued that the plaintiffs lacked standing because they could not prove their communications had been intercepted. The justices voted 5 to 4 to dismiss the case.

Writing for the majority, Justice Samuel A. Alito Jr. recited two claims made by the government: The Justice Department must notify criminal defendants who faced evidence derived from such surveillance, and the N.S.A., to intercept the Americans’ communications without a warrant, must target their foreign contacts for surveillance. But both claims have come under scrutiny in the recent focus on N.S.A. activities.

It emerged that the Justice Department was not notifying defendants in situations when warrantless surveillance had led in turn to a wiretap order on an individual that produced evidence used in court. Mr. Verrilli fought an internal battle last summer to change the practice, and prosecutors have been belatedly notifying defendants, who have clear standing to challenge the constitutionality of the spying.

And in August, it surfaced that the N.S.A. was also systematically scanning Americans’ cross-border emails without warrants and saving copies of any messages that contained discussion of a surveillance target. That meant the plaintiffs did not necessarily have to be in contact with an intelligence target for their communications to be intercepted without a warrant.

In November, Mr. Udall, Mr. Wyden and a third Democratic senator, Martin Heinrich of New Mexico, sent a letter to Mr. Verrilli pointing out both discrepancies and expressing concern that they had not been acknowledged or corrected. Mr. Heinrich did not sign the follow-up letter, and a spokeswoman for the senator, Whitney Potter, said he was satisfied with the Justice Department’s response.

In its December letter, the Justice Department argued that its description of the law had been accurate and noted that “based on a recent review” it had adopted a less constrained interpretation of its duty to notify defendants and had changed its practice. It has also defended itself in related court filings.

The department has argued as well that it was appropriate not to tell the court about scanning Americans’ international emails and saving those that discussed targets, because that activity had been classified at the time and was not relevant to the legal question before the court — whether the plaintiffs had standing.

But Mr. Udall and Mr. Wyden argued that the fact that the information was classified at the time did not make it acceptable to mislead the court into believing Americans’ international messages must be to or from a target to be collected without a warrant.

Jameel Jaffer, an American Civil Liberties Union lawyer who argued the case on behalf of the plaintiffs, said that he would have contended that his clients had legal standing based on the “about the target” collection had the government disclosed that the contents of everyone’s international emails were scanned as part of that program.

“What these letters highlight is the extent to which the government was able to take advantage of the fact that the Supreme Court, as much as the American public, was operating in the dark about the scope of the statute and the way the government was using it,” he said.