WASHINGTON – 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 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 designated terrorist organization based in Uzbekistan.
Muhtorov is accused of planning to travel abroad to join the militants. He has pleaded not guilty. 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.
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 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 Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. A group of plaintiffs led by Amnesty International had challenged the law as unconstitutional. But Verrilli last year urged the Supreme Court to dismiss the case because those plaintiffs could not prove that they had been wiretapped.
After reading the article, Verrilli sought an explanation from the National Security Division.
There ensued a wider debate throughout June and July, the officials said.
Verrilli was said to have argued that there was no legal basis to conceal from defendants that the evidence derived from legally untested surveillance, preventing 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.