WASHINGTON - The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a wiretap obtained without a warrant, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.
Prosecutors filed such a notice late Friday in the case of Jamshid Muhtorov, who was charged in Colorado in January 2012 with providing material support to the Islamic Jihad Union, a U.S.-designated terrorist organization based in Uzbekistan.
Muhtorov is accused of planning to travel abroad to join the militants and has pleaded innocent. A criminal complaint against him showed that much of the government’s case was based on emails and phone calls intercepted under a 2008 surveillance law.
Muhtorov, a refugee from Uzbekistan, resettled in Aurora, Colo., in 2007 with the help of the United Nations and the U.S. government. He was arrested Jan. 21, 2012, in Chicago with about $2,800, two shrink-wrapped iPhones and an iPad, as well as a GPS device.
In March 2012, Muhtorov’s attorney, federal Public Defender Brian Leedy, said at a court hearing that Muhtorov denied the allegations. He said his client had been headed to the Uzbekistan region to visit family members, including a sister who remains imprisoned in that country.
The Supreme Court last term declined to consider the constitutionality of the law amended in 2008 because it said those who filed a lawsuit against it could not prove they had been subject to its provisions.
The government’s notice allows Muhtorov’s attorney to ask a court to suppress the evidence by arguing that it is derived from unconstitutional surveillance, setting in motion judicial review of the eavesdropping.
When the Supreme Court earlier this year dismissed the challenge to the expanded federal law, which allows the interception of electronic communications between foreign targets and people in the United States, it said the lawyers, journalists and human-rights proponents who pressed the suit could not prove they had been caught up in the surveillance.
As a result, they did not have legal standing to challenge the constitutionality of the law’s expansion, Justice Samuel Alito Jr. wrote for fellow conservatives in the 5-4 decision.
The court’s liberals said the decision effectively protected the law from constitutional scrutiny, because no one would be able to prove they had been subject to the law.
But Alito, relying on a presentation from the government and Solicitor General Donald Verrilli Jr., said there was a way to challenge the law.
“If the government intends to use or disclose information obtained or derived from” such surveillance in judicial or administrative proceedings, Alito wrote, “it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.”
In June, Verrilli discovered that the Justice 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 wiretapping law, contradicting what Verrilli had told the Supreme Court while urging it to dismiss the case.
ACLU RESPONDS
In a statement, Patrick Toomey, staff attorney with the American Civil Liberties Union, which had represented Amnesty International and the other plaintiffs, hailed the move but criticized the Justice Department’s previous practice.
“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,” Toomey said. “By withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”
Justice Department spokesman Brian Fallon refused to comment Saturday on the new development beyond the court filing.
The Justice Department change traces back to June, when The New York Times reported that prosecutors in Fort Lauderdale, Fla., and Chicago had told defendants that prosecutors did not need to say whether evidence in their cases derived from wiretaps without a warrant.
After reading the article, Verrilli sought an explanation from the National Security Division, whose lawyers had vetted his briefs and helped him practice for his arguments, according to officials with knowledge of the internal deliberations. It was only then that he learned of the division’s practice of narrowly interpreting its need to notify defendants of evidence “derived from” wiretaps without warrants.
There ensued a wider debate throughout June and July, the officials said. National-security prosecutors raised operational concerns: Disclosing more to defendants could tip off a foreign target that his communications were being monitored, so intelligence officials might become reluctant to share crucial information that might create problems in a later trial.
Verrilli was said to have argued that there was no legal basis to conceal from defendants that the evidence derived from legally untested surveillance, and that such concealment prevented them from knowing they had an opportunity to challenge it. Ultimately, his view prevailed and the National Security Division changed its practice going forward, leading to the new filing Friday in Muhtorov’s case.
Still, it remains unclear how many other cases - including closed matters in which convicts are already serving prison sentences - involved evidence derived from wiretaps without warrants in which the National Security Division did not provide full notice to defendants, nor whether the department will belatedly notify them. Such a notice could lead to efforts to reopen those cases.
Before the recent leak of U.S. documents by former National Security Agency contractor Edward Snowden showing widespread government surveillance, dozens of consumer suits were filed against the government and telecommunications companies over obtaining customer data without warrants. Nearly all the cases were dismissed when Congress in 2008 granted the telecommunication companies retroactive immunity from legal challenges.
Information for this article was contributed by Charlie Savage of The New York Times; and by Pete Yost of The Associated Press; and by Robert Barnes and Ellen Nakashima of The Washington Post.
Front Section, Pages 1 on 10/27/2013