How the feds won a key warrantless wiretapping ruling by misleading the Supreme Court

October 28, 2013

(Photo by Mark Fischer via Flickr)

The New York Times reported that the Department of Justice recently changed policies, and will be notifying a criminal defendant that the evidence being used against them came from a warrantless wiretap. Just one problem: Justice told the Supreme Court that was standard policy already earlier this year.

According to the Times, prosecutors filed such a notice for the first time late on Friday. It was in the case of Jamshid Muhtorov, who is accused of providing material support to the Islamic Jihad Union, a designated terrorist organization. The government alleges he was planning to travel abroad to join the group, but he has pleaded not guilty. According to the criminal complaint, much of the government's case was based on intercepted calls and e-mails. By giving him notice that some of that evidence was derived from warrantless surveillance, prosecutors have set him up to be able to challenge the constitutionality of those programs.

In February, the Supreme Court dismissed a challenge to FISA Amendments Act (FAA) surveillance programs brought by Amnesty International on standing grounds -- agreeing with the government that since Amnesty International could not prove that it was the victim surveillance at the time, it had no right to sue. That 5-4 decision at least partially relied on an argument made by Solicitor General Donald B. Verrilli Jr. that while Amnesty International did not have grounds to sue, others might because "the government must provide advance notice of its intent to use information obtained or derived" from the laws. In fact, the Supreme Court mirrors that language fairly explicitly in its ruling, saying that "if the government intends to use or disclose information obtained or derived from” surveillance authorized by FAA “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition."

But in June, the Times reports Verrilli discovered that Justice's National Security Division had actually not been notifying criminal defendants when evidence used against them was derived from warrantless snooping early in the investigative chain. This set off a months-long internal policy debate over whether or not Justice should be doing what they told the Supreme Court they were already doing.

It's obviously problematic that Justice misled the Supreme Court about how the agency was handling the law in practice. But the implications of that practice are even more troubling. Patrick Toomey, the American Civil Liberties Union attorney who represented plaintiffs in Amnesty International case, said in a statement to the Times "by withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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Timothy B. Lee · October 28, 2013