October 20, 2013

IN 2008, CONGRESS authorized a warrantless wiretapping program. Five years later, the U.S. Supreme Court has said a grand total of nothing about its constitutionality. That finally looks likely to change — and relatively soon.

Earlier this year, the court heard a challenge to the warrantless wiretapping program, which is supposed to be targeted at foreigners, from a group of human rights activists. The group claimed that its extensive work with foreign sources implied that the government had looked at its communications in its warrantless monitoring of overseas information flows. But the court found that the activists hadn’t demonstrated that the government had harmed them, or that it would do so in the future. The justices were probably right on that one, but for skeptics of the law, the ruling raised a fair question: Will anyone ever be able to demonstrate that they have the legal standing to challenge the secret program?

The answer will soon be yes. The New York Times reported Thursday that the Justice Department will inform an as-yet unnamed defendant that prosecutors are using evidence against him that they obtained from the warrantless wiretapping program.

That reflects a new and long-overdue policy at Justice. Prosecutors in cases involving national security surveillance have always been obliged to disclose the authority under which they obtained wiretap evidence they use in court, including warrants from the Foreign Intelligence Surveillance Court (FISC). But they haven’t had to reveal the authority under which they got the information used to target defendants for surveillance. Since prosecutors have been careful not to directly introduce in court evidence they obtained through warrantless eavesdropping, no defendant has been able to claim that the program injured him.

In other words, if the government figures out that an American is funding a terror group by warrantlessly monitoring the communications of a different, foreign suspect, investigators can use that information to get a FISC warrant against the American, and obtain more evidence against him. If it introduces only information collected under that warrant in court, standing practice has been to avoid informing defendants about the role warrantless wiretapping played.

There aren’t any great justifications for this practice. If prosecutors already have to admit that they had a foreign intelligence warrant against a defendant, secrecy probably does not serve the purpose of keeping a defendant’s foreign associates in the dark. At the same time, obscuring the evidence chain by not revealing the use of warrantless information prevents meaningful judicial review of the government’s investigative tactics.

Justice’s legal minds apparently didn’t realize that they had to reconsider their disclosure practices when Congress okayed warrantless wiretapping in 2008, and they are only getting around to changing them now. At best that’s embarrassing.

Now that Justice is fixing its disclosure rules, though, at least one open case is likely to result in an actionable constitutional claim against the government’s warrantless wiretapping authority. Even if you favored the warrantless wiretapping law in 2008, as we did, that’s a good thing.