In March, opponents of secret government surveillance were dealt a major blow. The Supreme Court dismissed a challenge to warrantless wiretaps, arguing that plaintiffs would have to prove they were being secretly targeted by the government — a nearly impossible thing to do. However, one of the key points that led to the court's decision was that such a thing wasn't quite impossible after all. In order to use secretly collected evidence against a criminal defendant, testified Solicitor General Donald Verrilli, the government would have to first notify that person that they were the target of such surveillance.
Now, The New York Times is reporting that the government didn't do that job.
Could this open up warrantless wiretaps to judicial scrutiny again?
Citing several anonymous Obama administration officials, the Times claims that national security prosecutors had not been informing defendants when they used evidence from warrantless wiretaps after all. Verrilli wasn't too happy about that: reportedly, the solicitor general's office has been fighting since June to get the prosecutors to follow the rules, and now it appears he might have won.
Though the government has allegedly never informed a single defendant that a warrantless wiretap was used as evidence, the Times reports that the Justice Department will soon do just that: it will tell a single criminal defendant about how secret surveillance was used against them — and in so doing, possibly opening up warrantless wiretaps to judicial scrutiny once again. The Times also says that the government is trying to discover which other cases, both open and closed, might have used evidence collected during secret surveillance.
A paradox for the government, too
Intriguingly, the situation seems to have posed a bit of a paradox for the Justice Department itself. When justifying the warrantless wiretap program in December 2012, Senator Dianne Feinstein testified that a number of terrorists were arrested based on secret surveillance, as proof "that this has worked." However, the procecutors in two of those cases first declined to confirm that, and later said that they simply won't use evidence obtained from warrantless wiretaps in court, presumably so those warrantless wiretaps couldn't be challenged in court. Meanwhile, a Senate lawyer suggested that Feinstein "did not state, and did not mean to state" that those terrorists were arrested because of warrantless wiretaps. It raises the question: if secret surveillance wasn't important to these cases, then why perform it at all?
The government isn't answering that question quite yet, but it appears that it may be willing to start following the rules.