The Glossy Untruth

In a post about some of the inexplicably ridiculous things coming out of 7th Circuit Court of Appeals Judge Richard Posner’s mouth about privacy lately, Judge Richard Kopf included this in a comment:

In my experience, particularly with Title III interception applications, government’s agents and lawyers are careful not to lie or mislead. By the way, in this District no agent appears seeking a Title III order (or even a search warrant) without an Assistant United States Attorney who has carefully reviewed the submission appearing with the agent. With Title III interception requests, the applications cannot even get to a judge without approval from a senior DOJ official at Main Justice after careful review.

To anyone who has never had to make a Franks motion, this may offer some measure of comfort.  A Title III warrant is for wiretapping, one of the most intrusive measures available to the government. The idea that the feds are listening in should strike fear in the hearts of all, and only happen (if at all) under the most limited of circumstances, and then with the strictest of limitations.  After all, when a person is whispering words of love to a spouse, there really isn’t a good reason for some G-men recording it for playback at the Christmas Party.

All those careful eyes, the oversight of honest and trustworthy people like Assistant United States Attorneys, who would never lie, should bring comfort.  Certainly, they can be trusted to be sure that rogue agents are not intercepting telephone calls without having exhausted all normal law enforcement methods, without all the stringent requirements of minimization, without the oversight of government lawyers and the court.

The first step in the process is a Title III application to a judge, which is what Judge Kopf lauds as reflecting care “not to lie or mislead.”  That’s because the good judge hasn’t seen what the applications looks like from the defense table. Initially, the judge who signs off on the Title III warrant is, usually, the same judge who will later be asked by the defendant to doubt his judgment, to be open to the notion that the application was either deceitful, misleading or just plain wrong. You know how much judges love to rule that they blew it.

But the Title III warrant is obtained ex parte, just the smiling, trustworthy agent with his faithful sidekick, the AUSA, chatting up the judge about the evil defendants who really need to be prosecuted to save the wimmenfolk and children.  There is no defense lawyer present to argue to the contrary, to question the assumptions, to challenge the facile conclusions. Just the government and the judge, putting their heads together.

While the wiretap may last months, even years, each order is only good for 30 days, and requires 10 day reports along the way. The government takes snippets of conversations, dirty stuff like a guy calling the pizzeria and ordering a large pie, and adds nuggets of wisdom like “based on experience, ‘large pie’ refers to large quantities of narcotics,” and seeks to add the telephone number for the pizzeria to the warrant.

Hard to believe? Try this real life example: I borrowed a client’s cellphone on the way home from an arraignment to call my mother, as it was her birthday and, well, I forgot to call. Two years later, I’m reading through transcripts of telephone conversations and see my call to my mother, with the notation, “birthday refers to delivery of large quantities of narcotics.” True story.

But the papers, carefully reviewed by so many trustworthy eyes, can look very different from the other side of the courtroom. What appears to be an application “careful[ly drafted] not to lie or mislead” is an affidavit artfully drafted to gloss over details that contradict and undermine claims, deliberately written to lie and mislead.  Why else does an agent’s affidavit suddenly go from highly specific allegations of fact that serve their cause to ridiculously vague and amorphous rhetoric that provides an inexplicable sense of support, absent any of the obvious facts that ought to be there?

More to the point, does the judge notice when this happens?  Does an alarm go off in the judge’s head when the affidavit shifts from hard details to wild vagaries? Why do you think they did this, Judge?

Need a more concrete example? How about the agent describing in excruciating detail a target’s meeting with another, ending with “entered a multi-unit structure believed to be the stash house.”  What “multi-unit structure”?  You mean, a 758-unit apartment building, where hundreds of families live? Are they all part of the conspiracy? Where the target lives?  Is he not allowed to go home without it being in furtherance of the conspiracy?

Sure, the neglect to include details such as the number of apartments in the “structure” may seem mundane, but that’s what distinguishes a connection between a target, a premises and a phone.  When you add in the mundane details that the trustworthy government lawyer glossed over, it becomes clear that they can’t connect up a suspect with a crime, and therefore can’t give a good reason why a target phone ought to be tapped.

Of course, after it’s all done, and since it only matters when they finally make the arrests, the end product makes the government look brilliant, connecting dots that have no necessary connection. What about the phones, the targets, that dropped off the warrants over time when it turned out the government was full of it? What about the innocent people whose calls were intercepted and parsed by agents along the way?

What about the glossed-over details that should have been in the warrant applications, would have given the judge pause to realize the government was shooting blanks, would have preserved the privacy of people who did nothing to justify government recorders listening in to their most intimate conversations?  Well, after the take-down, all is forgotten and forgiven. After all, they caught the bad guys, and that proves they must have been right in the first place.

Actually, maybe this has more to do with Posner’s views on privacy than anticipated:

We should not fear the government scooping up too much information in pursuit of crime or in furtherance of the national security. On the contrary, we should fear that a risk averse government will seek to scoop up too little.

What’s a little gloss when there are criminals out there who must be caught?

11 thoughts on “The Glossy Untruth

  1. Steven M Warshawsky

    Judge Kopf surprises and offends many readers with his frank, and some would say inappropriate, blog comments. Few of his comment shock me, even coming from a federal judge, but this one did: “For myself, all I can say is that I try to be a good German.” In the post you linked to about government intrusions on personal privacy, Judge Kopf made this flippant remark, which strikes me as a much bigger “story” than the comments made by Judge Posner. The phrase “a good German,” of course, refers to Germans during the Nazi era who were willfully blind to the atrocities being committed by their government. Is Judge Kopf admitting that he is willfully blind to the constitutional violations being committed by our government?

    1. SHG Post author

      Under other circumstances, I would trash your comment as it’s off topic to my post and, if you think there is a bigger “story” to be told than the one I decided to tell, you can do so on your own blog. But, because I find your leap so disturbing, I decided instead to post your comment and reply.

      The phrase “a good German,” of course, refers to Germans during the Nazi era who were willfully blind to the atrocities being committed by their government.

      Of course? That’s a reflection of your sensitivity, not Judge Kopf’s, just like the whiny kids read their own meaning into other people’s words to justify the offense they choose to take. No, not “of course.” Not at all.

      Judge Kopf often refers to his German heritage as reflecting his tendency to appreciate, perhaps too much, an orderly world. To impute anything remotely “Nazi” to it is absurd and outrageous. As much as Judge Kopf and I may disagree about a great many things, I find your assertion outrageous and offensive, and most importantly, dead wrong.

      1. Steven M Warshawsky

        I appreciate your defense of Judge Kopf, but you’re flat wrong about the motivation for my comment and your ad hominem attack is uncalled for. The phrase “a good German” is widely understood to have the connotation I described. Look it up. This is not absurd at all. I’m not calling Judge Kopf a “Nazi” — I know, this is one of the “trigger words” for your blog — but I am saying that I was shocked he’d use this phrase on his blog. Whatever his intended meaning (and I’ll stipulate that you can read his mind better than I can), its use demonstrates a lack of sensitivity to language and to the message one conveys to others, which surprises me from a federal judge. I think that is a valid observation. If you don’t think it is worth publishing on your blog, fine, but there is no need for such hypersensitivity and vituperation on your part.

        1. Sgt. Schultz

          You “imply” that Judge Kopf is a Nazi, and then call SHG hypersensitive and vituperative? Are you out of your mind? Well, yes. Obviously.

      2. Lurker

        On this side of the pond, “good German” would ordinarily mean being punctual and orderly to the point of madness, as those are considered stereotypical German qualities.

        Even in WWII connection, the “good German” would mean at least the stereotype from comic books: an honourable, non-political and humane enemy, unless it meant the same as “righteous gentile”. It is inconceivable that a federal judge would use the expression to associate himself with a criminal regime or to compare his calling to participation in a genocide.

        1. Richard G. Kopf


          Thank you–that was certainly the sense in which I used the phrase, intending a tad bit of irony and introspection. You put it best, “punctual and orderly to the point of madness, as those are considered stereotypical German qualities.”

          By the way, Scott also captured my meaning perfectly. For the poor fellow who thought otherwise, the term willful blindness comes to mind.

          All the best.


          PS. As I have expressed to SHG privately, I appreciate his handling of this matter. That, of course, does not mean that he agrees with my post. He makes that perfectly clear.

          1. John Barleycorn

            Just a side not, if one lived in Germany you would refer to another “good German” as a Prussian.

            Because the king of Prussian and his army were renowned for discipline, efficiency, and austerity amongst other things.

            So as our country learns to suffer without complaint via the misuse of Tittle III warrants and other excessive infringements don’t forget to sweep your back poach or your government might do it for you.

            1. David M.

              Well, we don’t actually say that. In fact, the only people who talk about Prussia are those worryingly intense guys with spectacles and strong opinions on military history. You know whom I mean. They never get enough sunlight, or something?

              Also, the obvious solution to a (European) problem is asking the government to pick up a broom. You guys are clearly just backwards.

  2. John Barleycorn

    Where were we? Before this comment thread got started? Did this comment thread ever get started? Oh yeah, I remember….

    The esteemed one wrote a post and no ordinary SJ post at that. Several things are going on in this post that rarely bless the front pages of SJ. Those “things” rather “excite” the cheap seats and should also grab the attention of the guild-ed box seat regulars as well.

    It is also not very often the esteemed one slips a marble into one of his spit balls before he loads up his posting wrist rocket while tuning up a federal judge’s remarks, even if that federal judge is writing from a swept bunker in Nebraska and the marble will bounce off the bunkers tin roof.

    Then by some sort of logical argument, that is above the admission price of my preferred seating section, concludes that (some, perhaps most) federal judges ought
    to consider pulling their head out of their asses and freeing their cynic elder elf (that has long since been relegated to their back pocket to keep their exit hole warm with suffocated muffles of rage) and invite him or her to squarely sit on one of their shoulders quietly whispering sage considerations in the form of heavens forbid questions, to ask of the government. On those occasions when necessity has their heads out of their asses and they are reading along with all the government has chosen worthy to plop on their bench before signing off on warrants.

    Especially those creepy crawler slime ball Title III warrants that only incompetent fascists and their minions would have stashed in their “tool” kit.

    Or as a federal judge from Nebraska likes to say, “Carry on.”.

Comments are closed.