The Corner

Fast & Furious: Evaluation of Investigative Tactics Is Precisely DOJ’s Job

Sometimes it is hard to decide what is more irritating about the Obama/Holder Justice Department: the outrageous things they do or the way they insult your intelligence when rationalizing their malfeasance.

As Robert’s post indicates, criminal division chief Lanny Breuer is apparently being offered up as the fall-guy on Fast & Furious. He’s also the official assigned the unenviable task of explaining such things as why the Justice Department did not put a stop to the reckless gun-walking strategy in the course of reviewing wiretap applications which explained it. According to Josh Gerstein’s report (to which Robert links), Breuer testified to a Senate committee that Main Justice has “only one” role in reviewing wiretap applications: “to ensure there is legal sufficiency to make an application” to intercept communications — to ensure that the government’s petition to the federal judge is, he said, a “credible request.” He maintained that it is the job of the district offices actually carrying out the investigation “to determine that the tactics that are used are appropriate”; Main Justice, says Breuer, has to rely on those prosecutors in the field and is not there to second-guess them.

That is absurd. The reason federal law requires a sign-off by the Attorney General (or his designee at Main Justice) before a wiretap application may be made to a court is precisely to evaluate the tactics used in the investigation in order to render an informed judgment that electronic eavesdropping is warranted. Most investigative techniques do not require Main Justice approval; the investigations are overseen by supervisors in the relevant district U.S. attorney’s office (and by supervisors at the FBI or other investigative agencies actually doing the investigating). Wiretaps are different — Congress requires Attorney General approval. That is because wiretaps are intrusive, resource-intensive and very expensive, so the law demands that the Justice Department exercise meaningful supervision.

More to the point, a wiretap application cannot have what Breuer calls “legal sufficiency” unless Main Justice evaluates the tactics being used. The federal wiretap statutes (called “Title III” for short, and codified at Title 18, U.S. Code, Sections 2510 et seq.) expressly direct that before a wiretap may be authorized, the application must set forth “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” The judge cannot authorize the wiretap unless he finds that the Justice Department has made a convincing showing in this regard.

That is, there is a bias against wiretaps in the law. If other investigative techniques are succeeding in gathering enough evidence to prosecute, or could succeed if tried, the Justice Department is not supposed to ask for, and the court is not supposed to permit, electronic surveillance. Therefore, when it asks a court for permission to plant a bug, the Justice Department is legally required to explain what investigative tactics have been used to that point, how well they have succeeded, why they have been deficient, and why other techniques would not work. This is a key part of what the application must demonstrate in order to be legally sufficient. To be concrete, let’s say you’ve got a mafia or terrorism investigation. Justice explains to the court that it has been trying to monitor the suspects, but you can’t hear what they say by watching them, and the witnesses they’ve approached are afraid to talk; these mobsters or jihadis are not going to spill the beans just because they get a grand jury subpoena, and that it is too perilous (and unlikely) for an undercover FBI agent to try to infiltrate their top hierarchy; thus, because bugging the phones the bad guys use, or the locations where they meet, is the only practical way to advance the investigation, taps should be authorized.

Neither prosecutors nor the people at Main Justice who review wiretap applications can make these representations to the court without assessing: the direction and goals of the investigation; the law-enforcement tactics that have been used to that point in the investigation; what those tactics have accomplished; how useful those tactics have been in gathering evidence and moving the investigation toward its goals; why those tactics are not as promising as electronic surveillance; and how electronic surveillance might complement them to lay bare the entirety of the criminal scheme the Justice Department hopes to prosecute.  

Over my 18 years as a prosecutor, I worked on many wiretap investigations. Main Justice approval was never a rubber-stamp. It was not unusual for those who reviewed applications at Main Justice to disagree with the prosecutors handling the case in the field about whether electronic surveillance was warranted. Sometimes, those disputes had to be resolved at the level of the district U.S. attorney appealing directly to the Deputy Attorney General or the Attorney General. Obviously, Mr. Breuer is presuming that most people in America — and, indeed, most people in Congress — do not really understand how the wiretap approval process works. But to anyone who has actually been through that process a few times, Breuer’s claim that Main Justice does not second-guess investigative tactics is laughable.

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