Eric Holder May Have Just Toppled the First Domino in Ending NSA Surveillance

The top line news from an interview Attorney General Eric Holder gave to The Washington Post is that Holder recognizes Glenn Greenwald's work in exposing NSA — and Justice Department — surveillance as journalism and that he wouldn't be prosecuted. And, more importantly, that the DOJ is reviewing past cases to tell defendants when evidence was used against them.

The top line news from an interview Attorney General Eric Holder gave to The Washington Post is that Holder recognizes Glenn Greenwald's work in exposing NSA — and Justice Department — surveillance as journalism and that he wouldn't be prosecuted. More important, is that Holder also supports reviewing past cases to inform defendants when evidence against them stemmed from that surveillance. That information could kick open the door to a Supreme Court challenge of the NSA's activity.

Given Holder's personal history with the media (remember the AP phone records collection?), it's understandable that his comments about Greenwald would get some attention.

“Unless information that has not come to my attention is presented to me, what I have indicated in my testimony before Congress is that any journalist who’s engaged in true journalistic activities is not going to be prosecuted by this Justice Department,” Holder said.

“I certainly don’t agree with what Greenwald has done,” Holder continued, but journalism — even journalism flavored with activism — is not a reason to consider criminal charges. On Friday morning, The New York Times published an editorial raising concerns about how the British government is treading on that country's freedom of the press. Holder's statement distances him from that danger — but unlike his British peers, Holder is constrained by the First Amendment.

But more important, the Justice Department is reviewing cases in which charges depended on information collected from NSA surveillance:

“We have a review underway now,” Holder said. … “We will be examining cases that are in a variety of stages, and we will be, where appropriate, providing defendants with information that they should have so they can make their own determinations about how they want to react to it.”

The importance of this lies in how the Supreme Court determines when it takes a case. Earlier this year, the Court dismissed a lawsuit filed by the ACLU and other groups because those groups couldn't demonstrate that they'd been surveilled under the NSA systems that they were contesting. A key component of the government's argument in that case, presented by Solicitor General Donald Verrilli, was that individuals who had been surveilled by the NSA were informed of that surveillance and could therefore file a lawsuit themselves. Given that there existed people with standing, the Court threw out the case.

But it turned out that the Justice Department hadn't been informing defendants when it used that surveillance. In August, defendants in a case in Chicago were told that Foriegn Intelligence Surveillance Act evidence would be used against them, though the Post suggests that the first relevant example of being informed about surveillance evidence came last week. The ACLU's Jameel Jaffer, who argued the case that was dismissed, told the Post that "it was a 'big deal' that 'will undoubtedly set up a constitutional challenge to it.'"

In other words, Holder may be facilitating, intentionally or not, the demise of the NSA's surveillance tools, if one of the informed defendants files a lawsuit and the Supreme Court finds that they violate the Fourth Amendment protection against unreasonable searches — a clear triumph for Edward Snowden and privacy advocates. At that point, Holder's opinion of Greenwald's work might change.