Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence
By CHARLIE SAVAGE
Published: October 26, 2013
In Shift, Wiretaps Cited as Evidence by U.S. Prosecutors
By CHARLIE SAVAGE
WASHINGTON — 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.
Haraz N. Ghanbari/Associated Press
Solicitor General Donald B. Verrilli Jr. said
defendants had a right to know if prosecutors had relied on wiretaps.
Prosecutors filed such a notice
late Friday in the case of Jamshid Muhtorov, who was charged in
Colorado in January 2012 with providing material support to the Islamic
Jihad Union, a designated terrorist organization based in Uzbekistan.
Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty. A criminal complaint against him
showed that much of the government’s case was based on e-mails and
phone calls intercepted under a 2008 surveillance law.
The government’s notice allows Mr. Muhtorov’s lawyer to ask a court to
suppress the evidence by arguing that it derived from unconstitutional
surveillance, setting in motion judicial review of the eavesdropping.
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.
In a statement, Patrick Toomey, staff attorney with the American Civil
Liberties Union, which had represented Amnesty International and the
other plaintiffs, hailed the move but criticized the Justice
Department’s prior practice.
“We welcome the government’s belated recognition that it must give
notice to criminal defendants who it has monitored under the most
sweeping surveillance law ever passed by Congress,” Mr. Toomey said. “By
withholding notice, the government has avoided judicial review of its
dragnet warrantless wiretapping program for five years.”
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.
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