DOJ Reviewing Criminal Cases Utilizing FISA Intelligence, Will Notify Defendants

By Raffaela Wakeman
Friday, November 15, 2013, 2:57 PM

So reports Sari Horwitz at the Washington Post, who learned of this effort in an interview with Attorney General Eric Holder.

In Clapper v. Amnesty International, the 2013 challenge to Section 702 surveillance programs, Solicitor General Donald Verrilli represented to the Supreme Court that the government would notify criminal defendants when it planned to use evidence derived from Section 702 surveillance. Under FISA, once notified, defendants have the opportunity to move to suppress the evidence on grounds either that the information was unlawfully acquired or that it was acquired in a fashion that did not conform with a surveillance order. This requirement was one argument made in Justice Samuel Alito's majority opinion in dismissing the lawsuit on standing grounds: those against whom evidence was collected under 702 would have the opportunity to challenge the admission of that evidence.

However, the New York Times reported in June 2013 that the DOJ interpreted those FISA notice requirements quite narrowly. The provisions require the government to provide notice whenever it intends to "enter into evidence or otherwise use or disclose . . . any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter." And it seemed that perhaps Mr. Verrilli's statements to the Supreme Court did not jibe completely with the DOJ's implementation of that requirement.

After some back-and-forth, in which Mr. Verrilli participated, the NSD changed its policy, recently illustrated in a high-profile notice filing in a criminal case in Colorado.

It is unclear how many cases in the past there have been in which information stemming from FISA surveillance intelligence may have been used, but notice was not given. The Post story explains that as the DOJ reviews its cases, defendants who should have received notice, but didn't, will be alerted on a rolling basis. And thus, defendants will get a shot at objecting to the admission of evidence, albeit belatedly for at least some.