In Reversal, DOJ Poised to Give Notice of Warrantless Wiretapping

Patrick Toomey, Deputy Director, ACLU National Security Project

October 18, 2013

On Wednesday evening, the New York Times reported that for five years the Department of Justice had a policy that deprived criminal defendants of notice that they had been surveilled under the FISA Amendments Act (FAA) — the 2008 law that authorized the NSA's warrantless wiretapping of Americans' international communications. This policy contradicted assurances made by the government in our constitutional challenge to the FAA, that it would notify criminal defendants if it ever intended to use evidence derived from FAA surveillance against them. (The Supreme Court repeated that argument in its opinion dismissing our challenge on standing grounds.) According to the article, after the Solicitor General learned this summer of the DOJ's policy, he concluded that it "could not be legally justified" and pushed to have it reversed.

Now that the government reportedly intends to comply with its legal obligation to notify criminal defendants of FAA surveillance, an obvious question arises: In which cases did the government use FAA surveillance? We're hoping that a Freedom of Information Act (FOIA) request we filed in March will help answer that question.

Yesterday, we filed a lawsuit to enforce that FOIA request, which sought policy guidance and legal memoranda related to the DOJ's provision of notice in criminal prosecutions, as well as records identifying the criminal prosecutions in which the government has used evidence derived from surveillance authorized by the FAA. The lawsuit aims to reveal how the government has, for years, justified keeping criminal defendants in the dark about evidence derived from NSA surveillance and what the government's policy is today.

Importantly, while the DOJ's no-notice policy has apparently been reversed (some five years too late), the government still has not told a single defendant that he or she was surveilled under the FAA. But, according to the New York Times, the DOJ intends to provide notice of FAA surveillance to a criminal defendant in the coming weeks — thereby setting up a potential constitutional challenge to the law. That challenge, of course, would come in a case handpicked by the DOJ to suit its interests, but it would be the first case to test the legality of the government's warrantless wiretapping program.

It is difficult to predict which pending prosecution the government might choose — and even more difficult to understand why the DOJ still has not provided notice of FAA surveillance to every defendant who is entitled to it by law — but a number of pending cases are likely candidates. Government officials have specifically referenced at least a dozen prosecutions in connection with testimony defending the FAA, and some of those cases remain underway. Likewise, the DOJ has filed notices of traditional foreign-intelligence surveillance in a number of other ongoing prosecutions, one of which might now be supplemented with the first-ever notice of FAA-derived evidence. While the first chart below is not meant to be exhaustive, it reflects the prosecutions we've been able to identify as possibilities.

Beyond the impending constitutional challenge, the revelation that the DOJ has for five years deprived criminal defendants of notice to which they were legally entitled is sure to have other consequences. For one, it will almost certainly set off a series of post-conviction challenges — brought by criminal defendants who never had the opportunity to test whether the government's surveillance evidence was obtained in violation of the Constitution. To understand where these motions for a new trial or habeas petitions might appear, we have also compiled a list of closed cases mentioned by officials in connection with the FAA, as reflected in the second chart below.

The DOJ's no-notice policy has been a failure on many fronts. It has systematically violated the rights of criminal defendants, leaving behind a mess for the federal courts. It has put the Solicitor General in a difficult position, one where it is incumbent on him to correct the record in the Supreme Court. And it has prevented any court from publicly reviewing the constitutionality of a surveillance law that affects millions of Americans.

PENDING CASES:

Prosecution

Status/Notes

United States v. Zazi

E.D.N.Y.

No. 09-00663

Referenced by FBI Deputy Director Sean Joyce in June 18, 2013 testimony. Zazi has pled guilty, but has not yet been sentenced. He has entered into a cooperation agreement with the government.

United States v. Daoud

N.D. Ill.

No. 12-00723