Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
A recent decision by the Justice Department has opened the doors to a possible test of whether the government’s widespread use of wireless wiretaps is constitutional.
“The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.” New York Times
It may not sound like a big deal, but without the knowledge that the prosecution was using evidence derived from warrantless wiretaps, defendants did not have the ability to challenge the legality of such evidence. What caused the Justice Department to take this action at this time? It seems that the Solicitor General of the United States, Donald B. Verrilli, Jr., initiated an internal Justice Department debate earlier this year.
Solicitor General Verrilli learned that the National Security Division of the Justice Department was not making these notifications when he read an article that alleged that prosecutors in Chicago and Ft. Lauderdale had claimed that notice was not necessary. “The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department.
The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department’s National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.
The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration’s program of warrantless surveillance, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is “targeted” at a foreigner abroad.” New York Times