The U.S. Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, reports the New York Times. The case of Jamshid Muhtorov is expected to set up a Supreme Court test of whether such eavesdropping is constitutional. Muhtorov who was charged in Colorado last year with providing material support to the Islamic Jihad Union, a terrorist organization based in Uzbekistan. Muhtorov is accused of planning to travel abroad to join the militants. Much of the government's case was based on e-mails and phone calls intercepted under a 2008 surveillance law.
The Times reported earlier that the decision by prosecutors to notify a defendant about the wiretapping followed a debate inside the Justice Department. It began in June when Solicitor General Donald. Verrilli discovered that the department's National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law. The practice contradicted what Verrilli told the Supreme Court in a case challenging the law, the FISA Amendments Act of 2008.