Warrantless Surveillance Continues to Cause Fallout

NYTimes

The Justice Department has notified a Somali-American man who was convicted this year of trying to detonate a bomb in Portland, Ore., that his trial included evidence derived from warrantless wiretapping, a move that could disrupt plans to sentence him next month.

Three United States senators also sent a letter on Tuesday to Solicitor General Donald B. Verrilli Jr. accusing the government of misrepresenting surveillance policy to the Supreme Court in a case last year.

Together the developments show that fallout continues over the Justice Department’s handling of warrantless surveillance issues in court, which has come under scrutiny since leaks from Edward J. Snowden, the former National Security Agency contractor. The Justice Department did not comment on the letter.

Federal prosecutors filed the notice to the defendant in the Portland case, Mohamed Mohamud, late Monday. It was the second time that the Justice Department had made such a disclosure, after a similar move last month in a Colorado case that had not gone to trial. Mr. Mohamud was convicted of trying to use a weapon of mass destruction at a Christmas tree-lighting ceremony in 2010.

The notices could lead to a Supreme Court test of whether such eavesdropping, approved by Congress in the 2008 FISA Amendments Act, is constitutional. The Supreme Court rejected a challenge this year by Amnesty International on the grounds that the plaintiffs could not prove that their communications had been intercepted under the law.

The Justice Department had urged the Supreme Court to reject that case. It said the law would still be subject to judicial review, because criminal defendants facing evidence derived from warrantless surveillance would be notified of that fact and have standing to challenge it.

But it has since emerged that it was not the practice of National Security Division prosecutors to tell defendants when warrantless wiretapping had led to evidence in a case, something Mr. Verrilli had not known at the time of the Supreme Court case, even though his briefs and arguments assuring the justices otherwise had been vetted by the division. After the discrepancy came to light, Mr. Verrilli fought an internal battle to bring department policy in line with what he had told the court, ultimately prevailing.

But the senators — Ron Wyden of Oregon, Mark Udall of Colorado and Martin Heinrich of New Mexico — raised a new issue in their letter: A government brief, a statement by Mr. Verrilli during oral arguments and a line in the majority’s ruling appeared to rely on the premise that Americans had to be in direct contact with someone abroad who had been targeted for surveillance for the N.S.A. to collect their communications without a warrant.

However, it surfaced in August that the N.S.A. was also systematically scanning Americans’ cross-border emails without warrants and saving copies of any that contained discussion of a surveillance target.

Thus, the senators wrote, Amnesty International “would not necessarily have had to have communicated” with a target for its emails to be collected.