Criminal Defendants and Wireless Wiretaps: One Small Victory?

rafflaw

12 years ago

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

Solicitor General Verrilli told the Supreme Court that if a Federal prosecutor was going to use evidence derived from warrantless wiretaps, the government would have to disclose that fact to the defense. Is it a surprise to anyone that the actual practice of the Justice Department did not match what Solicitor General Verrilli had claimed in oral arguments and in written briefs to the Supreme Court?

To his credit, Solicitor General Verrilli took the proper action when he learned of the actual Justice Department practices. One could ask if the Solicitor General had not made the statements to the Supreme Court in Clapper v. Amnesty International, would the Justice Department be making these long-awaited notifications?

Another question that should be asked and was asked is what took the government so long to do the right thing? Even with these recent disclosures of the use of evidence derived from wireless wiretaps, shouldn’t the government have been using these notices in the five years since the act was renewed in 2008? Why did it take the Solicitor General to follow-up on his arguments in front of the Supreme Court to bring the Justice Department into compliance?

Would the Supreme Court have come to a different result in Clapper if they knew that the Justice Department was not making the disclosures that Solicitor General Verrilli discussed? Will this development allow convicted defendants to challenge their convictions if their conviction was based on warrantless wiretap derived evidence?

Let’s hear what you think!

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