In Shift, Federal Prosecutors Will Acknowledge Courtroom Reliance on Warrantless Surveillance

Can federal prosecutors conceal the true source of incriminating information from a defendant, when they rely on insights gained through warrantless communications surveillance? Or, must they acknowledge the source of such insights, and create the opportunity for defendants to raise a Fourth Amendment challenge?

Over the last year, the Department of Justice has given different answers to different courts on this critical question. In a 2012 case, the government’s top litigator, Solicitor General Donald Verrilli, reassured the Supreme Court that prosecutors would “provide advance notice of [their] intent” to use such information, to both the defendant and the judge. In other words, Verrilli indicated that the government would not deliberately mislead courts and defendant about the true course of an investigation through the process of “parallel construction.”

But in May and June of this year, prosecutors twice refused to tell defendants whether or not such information had been used in their cases, denying that they had any obligation to do so.

Recognizing the inconsistency of this practice, DOJ reportedly plans to notify a single, as yet unidentified defendant, that the case against him or her relied on warrantless surveillance. Department lawyers are also “combing [through] case files” to build the full list of other cases that used such evidence, though the extent and timing of DOJ’s upcoming, belated disclosures to these other defendants remain unclear.

The more fundamental question here — as yet unanswered — is whether the constitution ever allows prosecutors to use evidence gathered through warrantless surveillance (or other evidence developed with the help of such surveillance) in court. As ACLU litigator Patrick Toomey observed, by handpicking a single case in which to disclose its reliance on such intercepts, DOJ is effectively choosing the test case that will shape this broader practice.

So far, these questions have come up only in terrorism cases. But if the government prevails in its larger effort to validate courtroom use of warrantless surveillance, the consequences will sweep more broadly across the criminal law.