Wiretaps, Yada, Yada, Yada

United States wiretapshere is a non-story that will appeal to the black helicopter crowd and clueless liberals alike.  In 2015 United States District Courts approved  every wiretap application brought before the various courts. I hope so.

This has nothing to do with rubber stamps. Answer me this, how many times was evidence omitted or a defendant acquitted due to a faulty application for a wiretap?  Crickets.  I have already reported on the battle between the New York City Police Department and the FBI and FISA courts.

In case you missed it let me explain the process. As a Texas Peace Officer assigned to a narcotics task force I drafted over a thousand search warrants that were subsequently filed in both State and Federal Courts. Sometimes my State search warrants stood by themselves.  The case was filed in State Court, dismissed and then refiled in Federal Court.  The state search warrant met criteria for acceptance in federal Court. Often I went directly to the United States Attorney with a search warrant application. When this happened the Assistant United States Attorney either rewrote it in a form pleasing to them or let my work product stand.  In either case, the AUSA endorsed the application and off to the Federal magistrate we went. People involved the AUSA, my supervisor, the Magistrate Judge and myself as the affiant on the warrant. Time spent from drafting to signing six to twenty-four hours.

I have never drafted a wiretap application. I have been assigned to wiretap investigations but never managed one.  In order to get a wiretap (Federal) nobody bothers with a state wiretap, you first need a Fed.

Speaking from my standpoint this means I would first have to convince my supervisor and then my boss that a wiretap was the only effective way to conduct a particular investigation.  Since a wiretap represents a large commitment of manpower and expenses the return has to be worth the effort.

Assuming I convince my bosses, I then have to convince a Fed. For the Feds running a wiretap is a right of passage, like a bar mitzvah, do it right and new vistas open for the successful agent.  Do it wrong and there will always be a need for somebody to do surveillance at two in the morning.

With a Fed on board we now have to convince his bosses that the target is worthy and the end result is achievable. With DEA blessing, the next step is to get an AUSA to commit. Once an AUSA commits we are both committed to do his bidding.  What follows is two months of investigation to show that our target uses a telephone, in between calls to his bookie and his three baby’s mamas he is inclined to do dope deals over the telephone.  We also have to show that despite our best efforts every other investigative technique has failed.

The AUSA is supervising every word that goes into that wiretap application.  At some point, when it looks like we have probable cause and reason to believe that a wiretap is justified, thoughts of funding intrude.  Two things happen, the wiretap application gets shipped to DEA management in Houston and Washington.  Secondly, it goes to D.C. to be reviewed at the Justice Department. The whole thing is redrafted to reflect comments and changes recommended by these august bodies.  The approval to seek funding is given.

The US is broken into regions with each region having a pot of discretionary funds to fund things like wiretaps.  The application is brought before the regional committee and the review process starts once again.  Any Federal agency that might have a dog in the hunt can join the effort or not.  They each get to review and make changes to the application.  Any changes means that the application must be reviewed and approved again.

By this time three months have passed the application has been reviewed by management, bean counters, the local USA establishment, main Justice, DEA headquarters, other Federal agencies, their headquarters and the regional funding committee and it still hasn’t been seen by a judge.

It is no wonder that when the agent, affiant finally makes it to the Magistrate Judge’s chambers, the judge is inclined to sign off.  With so many levels of review, it is unlikely that the final product is going to be lacking in any material detail. It is also unlikely that such a disparate group will suddenly decide to take a flier and head out to the very edges of search and seizure law, in order to break new ground.

You know it is too bad that reporters don’t have a similar mechanism.  You know somebody to review their work and holler bullshit when they set out to intentionally mislead the reader.  I know we could call them editors.  Great concept.