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?