WASHINGTON — Five years after Congress authorized a sweeping warrantless surveillance program, the Justice Department is setting up a potential Supreme Court test of whether it is constitutional by notifying a defendant, for the first time, that evidence against him derived from the eavesdropping, according to officials.
Prosecutors plan to inform the criminal defendant about the monitoring in the next two weeks, a law enforcement official said. The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said.
Meanwhile, the department’s National Security Division is combing active and closed case files to identify other defendants who faced evidence resulting from the 2008 wiretapping law. It permits eavesdropping without warrants on Americans’ cross-border phone calls and e-mails so long as the surveillance is targeted at foreigners abroad.
It is not clear how many other such cases there are, nor whether prosecutors will notify convicts whose cases are over. Such a decision could set off attempts to reopen those cases.
“It’s of real legal importance that components of the Justice Department disagreed about when they had a duty to tell a defendant that the surveillance program was used,” said Daniel Richman, a Columbia University law professor. “It’s a big deal because one view covers so many more cases than the other, and this is an issue that should have come up repeatedly over the years.”
It is not clear whether prosecutors will notify convicts whose cases are over.
The officials familiar with the deliberations spoke on the condition of anonymity. The policy reversal had been reported by The Wall Street Journal.
The debate was part of the fallout about National Security Agency surveillance set off by leaks by Edward J. Snowden, the former NSA contractor. They have drawn attention to the 2008 law, the FISA Amendments Act, which legalized a form of the Bush administration’s once-secret warrantless surveillance program.
After Congress enacted the law, plaintiffs led by Amnesty International challenged its constitutionality. In February, the Supreme Court voted 5 to 4 to dismiss the case because the plaintiffs could not prove they had been wiretapped under it.
In urging the Supreme Court to reject the case, Verrilli had told the justices that other defendants would have legal standing to bring about judicial review of the program because prosecutors would notify people facing evidence from surveillance under the 2008 law.
But Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping without a warrant.
The Justice Department’s practices came under scrutiny after a December 2012 speech by Senator Dianne Feinstein of California, a Democrat and the chairwoman of the Intelligence Committee. During debate over extending the 2008 law, she warned that terrorism remained a threat. Listing several terrorism-related arrests, she added, “so this has worked.”
Lawyers in two of the cases Feinstein mentioned — one in Fort Lauderdale, Fla., and one in Chicago — asked prosecutors this spring to confirm that surveillance under the 2008 law had played a role in the investigations of their clients so they could challenge it.
Prosecutors said they did not have to make such a disclosure. On June 7, The New York Times published an article citing Feinstein’s speech.
As a result, Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments.
The national security lawyers explained that it was a misunderstanding. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.