Verrilli I say unto you

The Department of Justice doesn't know whether the warrantless wiretapping given to it as a parting gift by G.W. Bush's 110th Congress is constitutional or not, and would like to find out:

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 criminal defendant — for the first time — that evidence against him derived from the eavesdropping, according to officials.

Prosecutors plan to inform the 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.

A couple of quick points: [jump]

Image from Jammer-Store.

(1) This development, and the evidence of Verrilli's sincere interest in  putting the DOJ's work on a more acceptable legal footing, is of far more long-term significance in the evolution of Americans' civil liberties than all the hue and cry over the NSA and Snowden revelations, unless you want to argue that the Snowden revelations are what has sparked the concern—and if you did you'd be wrong.

To be sure, Charlie Savage claims that Snowden's documents are what got the DOJ debate going:

The debate was part of the fallout about National Security Agency surveillance set off by leaks by Edward J. Snowden, the former N.S.A. 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.

In February, the Supreme Court dismissed a case challenging its constitutionality because the plaintiffs, led by Amnesty International, could not prove they had been wiretapped. Mr. Verrilli had told the justices that someone else would have legal standing to trigger review of the program because prosecutors would notify people facing evidence derived from surveillance under the 2008 law.

But it turned out that Mr. 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 their conversations without a warrant.

But of course Snowden's leaks began in May, well after the Supreme Court decision in February. What it goes back to, in fact, is Dianne Feinstein's bizarre public leaking last December of cases where the warrantless surveillance supposedly stopped some terrorism from taking place.

(The Guardian's then blogger Glenn Greenwald procuced a remarkable rant on this speech, focusing on Feinstein's "disgusting rhetoric", "foul Cheneyite accusations", "vile attacks", "spewing", and "day-long fearmongering tirade", but seems to have been too upset to notice that she actually said something rather interesting that she probably should have kept quiet. Of course he hadn't yet become a reporter.)

Defense attorneys in two of the cases Feinstein mentioned thought their juries should know how their clients had been spied on, and this was the issue the Court ruled on last February. And Verrilli apparently agrees with the defense attorneys, or at least believes their questions need to be answered. So now it seems we are going to get a ruling on the much larger question, much sooner than anybody anticipated.

(2) Savage (a reporter many years before Greenwald was, and still a reporter now that Greenwald has retired to "pursue other opportunities" of a strangely nonspecific character) was able to discover a great deal about what is going on here in spite of the administration's War on Journalism:

The officials spoke on the condition of anonymity because they were not authorized to disclose internal discussions.

Perhaps he just has a more winning personality than David ("David, I love you, but" Sanger).

(3) A useful corrective to the War on Journalism which I just ran across is this, by the great Jack Shafer.

Image from Momma Grace Jones (I think not the same Grace Jones you're thinking of).