WASHINGTON – The Justice Department said Friday it will notify criminal defendants when the government has used evidence against them that was gathered through warrantless surveillance programs.
The department is undertaking a comprehensive review to turn up all cases in which such notifications need to be made, said department spokesman Brian Fallon. Attorney General Eric Holder first disclosed the review in an interview with The Washington Post.
The notifications will set the stage for a likely Supreme Court test of the Obama administration's approach to national security, which uses the National Security Agency's technical capabilities to gather phone and Internet data.
The high court so far has turned aside challenges to the law on government surveillance on the grounds that people who bring such lawsuits have no evidence they are being targeted.
Three weeks ago, the government told a suspect for the first time that it plans to use evidence against him gathered under the Foreign Intelligence Surveillance Act.
Jamshid Muhtorov was accused in 2012 of providing material support to the Islamic Jihad Union, an Uzbek terrorist organization that, authorities say, was engaging the NATO coalition and U.S. forces in Afghanistan. According to court papers in the case, the FBI investigated Muhtorov after his communications with an overseas website administrator for the IJU.
Last February, the Supreme Court ruled in a 5-4 vote that a group of American lawyers, journalists and organizations could not sue to challenge a 2008 expansion of the National Security Agency law. The court said those who sued could not show that the government would monitor their communications along with those of potential foreign terrorist and intelligence targets.