On Friday, the Washington Post published an account of an interview it held with US Attorney General Eric Holder, who said the Department of Justice would conduct a comprehensive review of criminal cases in which the government used or is using evidence that it acquired through through warrantless wiretaps. Holder said that the DoJ would notify defendants in those cases where the government had used such evidence, “where appropriate.”

In such situations, convicted defendants might even be able to retry their cases.

Until this year, the Department of Justice had never divulged to any defendants whether they had been subject to spying approved by the Foreign Intelligence Surveillance Act. This precedent was maintained by the government, perhaps to reap the benefits of a decision made by the Supreme Court in February 2013, which essentially stated that parties could not sue the government for spying on them if they could not prove that they had been spied on.

That changed this year in late July, when a US District Court in Southern Florida ordered government prosecutors to disclose if the DoJ had gathered any evidence from FISA-approved spying on two Pakistan-born brothers who were on trial for terrorism. The government turned over that information. In a separate case in October, the government again disclosed to a defendant that it would use FISA-gathered evidence against him. It has since been discovered that internally, officials from the Justice Department are arguing that there is no legal basis for withholding such information.

In October, the ACLU sued the government for an accounting of defendants that had not known about warrantless evidence collected against them. Holder's decision to notify defendants of the source of evidence against them could open up a path to challenge the constitutionality of surveillance law.

Holder also told the Washington Post that the Justice Department had ongoing talks with Russia to try to repatriate former NSA contractor Edward Snowden, so that the government can try him for espionage. And, Holder mentioned that he currently had no intention to press charges against Glen Greenwald, the reporter who published leaks divulged by Edward Snowden. “I certainly don’t agree with what Greenwald has done,” Holder told the Post. “In some ways, he blurs the line between advocate and journalist. But on the basis of what I know now, I’m not sure there is a basis for prosecution of Greenwald.”