Justice is reviewing criminal cases that used surveillance evidence gathered under FISA

The Justice Department is conducting a comprehensive review of all criminal cases in which the government has used evidence gathered through its warrantless surveillance program and will be notifying defendants in some of those cases, according to Attorney General Eric H. Holder Jr.

“We have a review underway now,” Holder said in an interview with The Washington Post. “We will be examining cases that are in a variety of stages, and we will be, where appropriate, providing defendants with information that they should have so they can make their own determinations about how they want to react to it.”

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Full coverage: NSA Secrets

Full coverage: NSA Secrets

Read all of the stories in The Washington Post’s ongoing coverage of the National Security Agency’s surveillance programs.

In the wide-ranging interview on Thursday, Holder also discussed the prosecution of the alleged Boston Marathon bomber, efforts to bring former NSA contractor Edward Snowden back to the United States, leak investigations and some of his plans.

“I’ve made the determination — I’m not sure I’ve ever said this publicly — but I’m going to certainly stay in this job well into 2014,” Holder said during a flight from Peoria, Ill., to Washington. “If you had asked me that six months ago, I’m not sure I would have given you that answer. I think I probably would have come up with a shorter time frame. But given the issues that I want to focus on and given the condition that they’re in, I think that staying into 2014 is necessary, but also something that I want to do.”

Holder said he will decide by mid-January whether to seek the death penalty if Dzhokhar Tsarnaev, 20, is convicted in the Boston bombing. He said he will review separate recommendations by Carmen Ortiz, the U.S. attorney in Boston; a Justice Department review committee; Deputy Attorney General James M. Cole; and Channing Phillips, counselor to the attorney general.

“I’ve asked people at every layer — to the extent that they can — to take a fresh look at it so that I’m getting a bunch of different perspectives and not a repeat of whatever the initial or the latest recommendation is,” Holder said. They will take into account the offenses, the background and age of Tsarnaev, and his alleged role in the crimes.

“But at the end of the day, it’s going to be me with a large stack of paper . . . sitting at my kitchen table while everybody else in my house has gone to sleep,” Holder said. “And over the course of a few days, I will sit down and make the determination.

“It’s the single most weighty thing I do as attorney general,” Holder said.

Holder said that Justice officials have not given up on efforts to repatriate Snowden, who has received temporary asylum in Russia, to stand trial on charges under the Espionage Act for taking and leaking classified documents about surveillance programs. He said conversations with Russian officials “if not constant are ongoing.”

He said that “as of now,” Russian officials are not receptive to sending Snowden back for trial.

Holder indicated that the Justice Department is not planning to prosecute former Guardian reporter Glenn Greenwald, one of the journalists who received documents from Snowden and has written a series of articles based on the leaked material. Greenwald, an American citizen who lives in Brazil, has said he is reluctant to come to the United States because he fears detention and possible prosecution.

“Unless information that has not come to my attention is presented to me, what I have indicated in my testimony before Congress is that any journalist who’s engaged in true journalistic activities is not going to be prosecuted by this Justice Department,” Holder said.

“I certainly don’t agree with what Greenwald has done,” Holder said. “In some ways, he blurs the line between advocate and journalist. But on the basis of what I know now, I’m not sure there is a basis for prosecution of Greenwald.”

Greenwald said he welcomed the statement but remains cautious.

“That this question is even on people’s minds is a rather grim reflection of the Obama administration’s record on press freedoms,” he said in an e-mail. “It is a positive step that the Attorney General expressly recognizes that journalism is not and should not be a crime in the United States, but given this administration’s poor record on press freedoms, I’ll consult with my counsel on whether one can or should rely on such caveat-riddled oral assertions about the government’s intentions.”

The disclosure about the review of criminal cases comes just weeks after the Justice Department informed a suspect for the first time that it intends to use evidence against him gathered through the government’s warrantless surveillance program under the Foreign Intelligence Surveillance Act.

The Justice Department’s notifications are likely to lead to a constitutional challenge to surveillance law, which allows electronic communication between foreign targets and people in the United States to be intercepted. The Supreme Court had previously declined to hear a challenge to the law because litigants could not prove that they had been monitored.

Holder said he did not know how many cases are involved, but he said the notifications will be made on a rolling basis as Justice Department officials find the information.

The notifications could, in some instances, involve cases in which defendants have already been convicted and are in prison. In those matters, defense attorneys may try to reopen the cases.

For the first time last month, the Justice Department informed a terrorism suspect in Colorado that it intends to use “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act.”

The notification came in the case against Jamshid Muhtorov, a refu­gee from Uzbekistan who lives in Aurora, Colo. He was charged in 2012 with providing material aid to the Islamic Jihad Union, and he and another man were suspected of trying to participate in a terrorist attack planned by the group.

That first notification came after a vigorous internal debate last summer between lawyers in the National Security Division and Solicitor General Donald B. Verrilli Jr., who argued that there was no legal basis for withholding disclosure, according to an administration official who spoke on the condition of anonymity to discuss the sensitive matter.

The National Security Division lawyers had argued that it was not necessary to make the notifications unless the evidence derived from the wiretap or intercepted e-mail was introduced directly into the case, the official said. Eventually, Verrilli won out.

Julie Tate contributed to this report.

 
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