Criminal Defendants and Wireless Wiretaps: One Small Victory?


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!

36 thoughts on “Criminal Defendants and Wireless Wiretaps: One Small Victory?”

  1. randyjet, I understand the need for legal measures to investigate criminal activities. I don’t suggest that all be forbidden, but nobody has a right to know what I send in an email, anymore than they had the right to know what was in my snail mail. Nobody has a right to know what is in my computer or on my phone, nobody. There is such a thing as probable cause, or it least used to be. If I don’t support the current regime, that is not probable cause, never was, never will be. I was a certified/commissioned law enforcement officer later in life after the then Supreme Court freed me and my attorneys got the fbi off my back. The opening of my Thai wife’s Valentine card occurred just a few years back before I left the states for good. Those that break the law, ie today’s Gestapo (local and federal), banksters, Wall Street criminals, Presidents etc. do so with impunity, at least tricky dick was forced to resign. Too many “too big to jail” any more.

    1. I completely agree with sgtsabai. Could not have said it better. Glad that you were able to get the crooks off of your back and do some good.

  2. We have no privacy, haven’t had for years. My phone bill was paid for by the fbi during the nixon years so they could listen to us and other VVAW members, thanks guys we made lots of calls to folks that already knew the phone was tapped. Was it a legal tap, hell no. My mail was opened, no warrant, I was followed, subject to 24 hour surveillance and even lost assistance for raising my son thanks to the feds lying. This was a long time ago in another universe. My belief is our email is no different than postal mail, our phone records are private along with our calls and movement, I don’t care what the government or the right wing courts seem to think, they forgot the Constitution long ago. Nobody, nobody has a right to know what I do, period, right is the operative word there, including the gestapo at airports. I found a Valentine card from my Thai wife (when I still had to live in the Corporate Police State of Amerika) opened and a nice note attached saying “we” opened your mail. I hope the perverts enjoyed the “I love you”.

    Keep GitMo open for those that really belong there, and that includes the un-Supreme Court ‘gang of 5’.

    1. sgtsabai, I know the same thing that you were subjected to, and that was clearly illegal, and it is too bad that the people responsible for such things were not sent to prison for that. The problem is that as long as we have a need for police, they do need the ability to investigate CRIMINAL activities, and your suggestion that all such things are forbidden is absurd. When the police and the state use such means to harass and oppose their POLITICAL opponents, THAT is illegal and needs to be punished. It is the same as using government resources and money for partisan political purposes for election campaigns.

  3. rafflaw:

    This story is particularly disturbing because of the number of questions it raises. The fundamental problem is that technology has far outpaced the ability of the law to develop reasonable restraints, and Congress simply refuses to do so. I am half-convinced that we have decided as a society that privacy is no longer worth protecting. My own kids have grown up in a world in which people routinely share whatever they happen to be doing from moment to moment during the course of an ordinary day. What meaning does privacy have anymore?

  4. MichaelZ,
    I didn’t know what you were talking about, so checked the filters. For future reference there are four words the WordPress filters are set to catch. You used the F-bomb which is one of the four. The others are a synonym for a female dog, one is a the b-word for a person whose parents never married, and the third is the naughty term for an anus.

    Other than those few rules, feel free to say what you think.

  5. bettykath, I know he’s considered Satan in these parts but Scalia is as strong as any Justice on the 4th amendment. So, if you consider him the devil, you’ll have to give the devil his due.

  6. raff, re: supreme court – yes. Too many of its members seem to have an agenda that doesn’t include what’s right for people.

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