Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence

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.

Prosecutors recently filed such a notice in the case of Jamshid Muhtorov, who was charged in Colorado in January 2012 with providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan. A criminal complaint against him showed that much of the government’s case was based on intercepted e-mails and phone calls. The government’s notice allows Muhtorov’s lawyer to ask a court to suppress the evidence by arguing that it derived from unconstitutional surveillance, setting in motion judicial review of the eavesdropping. 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 practice contradicted what Solicitor General Donald B. Verrilli Jr. had told the Supreme Court in 2012 in a case challenging the law, the FISA Amendments Act of 2008. In a statement, Patrick Toomey, staff attorney with the American Civil Liberties Union, which had represented Amnesty International and the other plaintiffs in the case, “We welcome the government’s belated recognition that it must give notice to criminal defendants who it has monitored under the most sweeping surveillance law ever passed by Congress. By withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”