Why Secret Federal Surveillance May Finally Get A Real Hearing Before The Supreme Court

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Last year, when a divided U.S. Supreme Court rejected a lawsuit challenging federal secret surveillance provisions, the court relied on assurance by the U.S. Solicitor General that defendants who were prosecuted based on this sort of surveillance evidence would have their own distinct opportunity to challenge it, because they would be notified if that evidence were used against them.

It turns out those assurances were false. Reports by the New York Times over the past several months revealed that, although U.S. Solicitor General Donald Verrilli didn’t know it, the Department of Justice’s policy had been not to inform defendants of surveillance evidence used against them in the five years since the Foreign Intelligence Surveillance Amendments Act was passed.

That changed Friday, after Verrilli forced a change in policy and prosecutors for the first time notified a defendant in a case alleging terrorism support that evidence collected under secret wireless surveillance would be used against him in his case. The notice now gives defendant Jamshid Muhtorov and others like him the opportunity to file a new, more robust challenge to the FISA Amendments Act, which has come under new scrutiny since leaks by Edward Snowden.

In last year’s 5-4 Supreme Court ruling, the majority held that that journalists, human rights activists, and lawyers who alleged that their work was chilled by fear about surveillance of their confidential conversations did not have what is known as “standing” to sue because they did not know whether or not the government was actually spying on them. Justice Sonia Sotomayor and others questioned whether anyone would have standing to challenge a secret surveillance law that by its very nature does not reveal the subjects of its spying. Verrilli told Sotomayor that criminal defendants would have standing if the surveillance was used against them at trial, because prosecutors would be required to inform them. He again argued the same in a brief, and Justice Samuel Alito made that same argument in his written decision for the court’s majority.

Now that the DOJ has at least partially changed its policy and notified Muhtorov that the charges against him are based on emails and phone calls intercepted through secret warrantless surveillance, Muhtorov’s case is a prime opportunity for U.S. Supreme Court review of secret surveillance. Muhtorov can argue that the evidence was obtained through unconstitutional means and should be excluded from trial on whether he provided material support to the Islamic Jihad Union, a designated terrorist organization. This will open the door to what seems to be the only potential avenue for challenging the FISA Amendments Act. But as the American Civil Liberties Union’s Patrick Toomey points out, the Justice Department could have cherry-picked this case as the one most likely to withstand legal challenge. And it is unclear how the Department will handle those who have already been prosecuted on evidence linked to secret surveillance without notice, or how the public will know that prosecutors are notifying every defendant going forward.