While Congress voted into law the widespread use of warrantless surveillance by law enforcement, the constitutionality of wiretaps has remained a contentious issue. Now, as Charlie Savage reported in the New York Times Thursday, the question of wiretap legality has an opportunity to go to the Supreme Court, based on a Justice Department plan to tell a defendant in a criminal case that evidence against him was gathered through a warrantless wiretap.
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.
Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email firstname.lastname@example.org.