According to former federal judges John W. Bissell, Robert J. Cindrich, John J. Gibbons, Nathaniel R. Jones, Timothy K. Lewis, Stephen M. Orlofsky, H. Lee Sarokin, and Alfred M. Wolin, the district court’s decision in this regard is not only inconsistent with the case law regarding suppression, but also dangerously undermines judges’ ability to provide meaningful oversight of wiretaps and other electronic surveillance. By allowing the government to retroactively rewrite a wiretap application, said amici, the district court transformed the prior approval process into little more than an empty gesture, creating incentives for the government to mislead authorizing judges and undermining the ability of these judges to provide the prior approval and oversight that the Constitution and laws of the United States demand. The former federal judges asked the Second Circuit to correct this serious error and clarify that a motion to suppress a wiretap does not offer the government an opportunity to introduce facts that it failed to include in its wiretap application.
Citing Supreme Court precedent, the amicus brief noted that by its very nature electronic eavesdropping involves an intrusion on privacy that is broad in scope. Berger v.
New York, 388 41, 56
(1967). With this intrusion in mind, the
Fourth Amendment and Title III demand close judicial oversight of wiretaps,
they said, including prior judicial approval, in order to ensure that the
appropriate balance between the interests of law enforcement and the
privacy interests of individuals is
maintained. But judges can only perform
this crucial role if the government is forthright during the wiretap
application process, particularly because the proceedings are ex parte, and
judges are therefore entirely dependent upon government representations in
determining whether a wiretap is appropriately authorized. U.S.
It also undermines the central role that judges play in the wiretap authorization process and, more generally, their capacity to perform their constitutional and statutory function of acting as a vital check on executive branch actions which may intrude into personal privacy. Even more troubling, perhaps, it writes a dangerous new chapter in the history of the relationship between the executive and judicial branches, so essential to the scheme of government. For these reasons, amici said that the district court’s decision should not be permitted to stand. The former federal judges urged the Second Circuit to clarify that, in finding that government misrepresentations or omissions in a wiretap application were not material, the district court can rely only upon those facts that were presented to the authorizing judge in the government’s wiretap application.