This is a very interesting development that could lead somewhere important. The Department of Justice is now informing defendants if any evidence in their case was procured through a warrantless wiretap. Why is this important? Because it gives them standing to challenge illegal surveillance.
The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional…
The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department.
The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department’s National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.
The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration’s program of warrantless surveillance, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is “targeted” at a foreigner abroad.
A group of plaintiffs led by Amnesty International had challenged the law as unconstitutional. But Mr. Verrilli last year urged the Supreme Court to dismiss the case because those plaintiffs could not prove that they had been wiretapped. In making that argument, he said a defendant who faced evidence derived from the law would have proper legal standing and would be notified, so dismissing the lawsuit by Amnesty International would not close the door to judicial review of the 2008 law. The court accepted that logic, voting 5-to-4 to dismiss the case.
This could be very important. Now the government can’t challenge the standing of the person challenging the illegal surveillance because they’ve already admitted that they used evidence obtained through a warrantless wiretap. This allows a challenge to the government’s actions on the merits. Why the sudden shift in position by the Obama administration? Are they trying to set up a valid legal challenge to their own executive authority? That would be quite the opposite of what they’ve done since taking office. We’ll find out when such a challenge hits the appeals court. If the DOJ tries to kill the case using the State Secrets Privilege, as they’ve done in every civil challenge to their surveillance authority, the answer will clearly be no.