October 16, 2013
Door May Open for Challenge to Secret Wiretaps
By CHARLIE SAVAGE
WASHINGTON -- Five years after Congress authorized a sweeping warrantless surveillance program, the Justice Department is setting up a potential Supreme Court test of whether it is constitutional by notifying a criminal defendant -- for the first time -- that evidence against him derived from the eavesdropping, according to officials.
Prosecutors plan to inform the defendant about the monitoring in the next two weeks, a law enforcement official said. The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said.
Meanwhile, the department's National Security Division is combing active and closed case files to identify other defendants who faced evidence resulting from the 2008 wiretapping law. It permits eavesdropping without warrants on Americans' cross-border phone calls and e-mails so long as the surveillance is "targeted" at foreigners abroad.
It is not yet clear how many other such cases there are, nor whether prosecutors will notify convicts whose cases are already over. Such a decision could set off attempts to reopen those cases.
"It's of real legal importance that components of the Justice Department disagreed about when they had a duty to tell a defendant that the surveillance program was used," said Daniel Richman, a Columbia University law professor. "It's a big deal because one view covers so many more cases than the other, and this is an issue that should have come up repeatedly over the years."
The officials spoke on the condition of anonymity because they were not authorized to disclose internal discussions. The Wall Street Journal  previously reported on a recent court filing in which the department, reversing an earlier stance, said it was obliged to disclose to defendants if evidence used in court was linked to warrantless surveillance, but it remained unclear if there were any such cases.
The debate was part of the fallout about National Security Agency surveillance set off by leaks by Edward J. Snowden, the former N.S.A. contractor. They have drawn attention to the 2008 law, the FISA Amendments Act, which legalized a form of the Bush administration's once-secret warrantless surveillance program.
In February, the Supreme Court dismissed a case challenging its constitutionality because the plaintiffs, led by Amnesty International, could not prove they had been wiretapped. Mr. Verrilli had told the justices that someone else would have legal standing to trigger review of the program because prosecutors would notify people facing evidence derived from surveillance under the 2008 law.
But it turned out that Mr. Verrilli's assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.
Jameel Jaffer, an American Civil Liberties Union lawyer who argued in the Supreme Court on behalf of the plaintiffs challenging the 2008 law, said that someone in the Justice Department should have flagged the issue earlier and that the department must do more than change its practice going forward.
"The government has an obligation to tell the Supreme Court, in some formal way, that a claim it made repeatedly, and that the court relied on in its decision, was simply not true," he said. "And it has an obligation to notify the criminal defendants whose communications were monitored under the statute that their communications were monitored."
A Justice Department spokesman declined to comment. The department's practices came under scrutiny after a December 2012 speech by Senator Dianne Feinstein, the chairwoman of the Intelligence Committee. During debate over extending the 2008 law, she warned that terrorism remained a threat. Listing several terrorism-related arrests,  she added, "so this has worked."
Lawyers in two of the cases Ms. Feinstein mentioned -- one in Fort Lauderdale and one in Chicago -- asked prosecutors this spring to confirm that surveillance under the 2008 law had played a role in the investigations of their clients so they could challenge it.
But prosecutors said they did not have to make such a disclosure. On June 7, The New York Times published an article  citing Ms. Feinstein's speech and the stance the prosecutors had taken.
As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.
The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what "derived from" means in terms of when it must disclose specifics to defendants.
In national security cases involving orders issued under the Foreign Intelligence Surveillance Act of 1978, or FISA, prosecutors alert defendants only that some evidence derives from a FISA wiretap, but not details like whether there had just been one order or a chain of several. Only judges see those details.
After the 2008 law, that generic approach meant that prosecutors did not disclose when some traditional FISA wiretap orders had been obtained using information gathered through the warrantless wiretapping program. Division officials believed it would have to disclose the use of that program only if it introduced a recorded phone call or intercepted e-mail gathered directly from the program -- and for five years, they avoided doing so.
For Mr. Verrilli, that raised a more fundamental question: was there any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, thereby preventing them from knowing that they had an opportunity to argue that it derived from an unconstitutional search?
The debate stretched through June and July, officials said, including multiple meetings and dueling memorandums by lawyers in the solicitor general office and in the national security division, which has been led since March by acting Assistant Attorney General John Carlin. The deliberations were overseen by James Cole, the deputy attorney general.
National security lawyers and a policy advisory committee of senior United States attorneys focused on operational worries: Disclosure risked alerting foreign targets that their communications were being monitored, so intelligence agencies might become reluctant to share information with law enforcement officials that could become a problem in a later trial.
But Mr. Verrilli argued that withholding disclosure from defendants could not be justified legally, officials said. Lawyers with several agencies -- including the Federal Bureau of Investigation, the N.S.A. and the office of the director of national intelligence -- concurred, officials said, and the division changed the practice going forward.
National Security Division lawyers began looking at other cases, eventually identifying the one that will be publicly identified soon and are still looking through closed cases and deciding what to do about them.
But in a twist, in the Chicago and Fort Lauderdale cases that Ms. Feinstein had mentioned, prosecutors made new court filings saying they did not intend to use any evidence derived from surveillance of the defendants under the 2008 law.
When defense lawyers asked about Ms. Feinstein's remarks, a Senate lawyer responded in a letter  that she "did not state, and did not mean to state" that those cases were linked to the warrantless surveillance program. Rather, the lawyer wrote, her point was that terrorism remained a problem.
In a recent court filing, the lawyers wrote that it is "hard to believe" Ms. Feinstein would cite "random" cases when pressing to reauthorize the 2008 law, suggesting either that the government is still concealing something or that she had employed the "politics of fear" to influence the debate. A spokesman for Ms. Feinstein said she preferred to let the letter speak for itself.