The Corner

A ‘Fast & Furious’ I Told You So

Corner dwellers will not be the least bit surprised by Robert’s report that wiretap applications submitted to federal court by the Justice Department demonstrate that DOJ officials knew about the reckless investigative tactics used in the Fast & Furious investigation.

Last November, Attorney General Holder and one of his top underlings, Criminal Division Chief Lanny Breuer, tried to mislead the country into believing that Main Justice’s sole role in reviewing electronic surveillance applications is to ensure their “legal sufficiency” — which most people would take to mean: to make certain that the district U.S. attorney’s office and the investigative agency seeking wiretap authorization have stated probable cause that a crime is being committed and that the wiretap will yield evidence of it.

But as I explained at the time, this is not true. Under the extensive requirements of federal eavesdropping law, Justice Department officials have a duty to evaluate the law-enforcement tactics that have been used in the investigation and to explain to the court why they must be supplemented by wiretaps if the investigation is to succeed. To reiterate what I said in that post:

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.

Except . . . this is no laughing matter.


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