Here’s a question that most law school students after a semester of constitutional law would answer quickly and confidently with a resounding “no” response.
That query: Can federal government officials intercept and monitor private telephone communications inside the United States without receiving judicial authorization to do so?
There’s just one problem with an unqualified “under no circumstances” response to that question.
It would be incorrect.
In fact, the 9th U.S. Circuit Court of Appeals ruled earlier this week that the executive branch of the federal government is immune when it comes to state eavesdropping, even if its conduct is construed as improper and results in the violation of an individual’s constitutional rights.
Although a damage suit can be brought against the government for harm suffered as the result of how information obtained is used, immunity attaches to the act of information collection itself, noted the federal appeals court.
“Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts,” stated the court.
The case stemmed from the warrantless wiretap program authorized under the Bush administration, pursuant to which individuals and groups suspected of terrorism were subjected to clandestine monitoring without court approval. One such group, the now-closed Al-Haramain Islamic Foundation, sued the government, stating that its communications — including those of its lawyers — were secretly taped.
Although the court found for the government, it called the litigation “complex” and noted “the significant infringement on individual liberties” that would result if government officials conducted wiretap activities in disregard of the congressionally mandated procedures for doing so.
The court’s ruling certainly acknowledges the federal government’s considerable resources and leeway to act in many criminal investigations. A potential check on that power is an experienced and aggressive federal appeals attorney who knows the appellate process and how to effectively promote the legal interests of clients who seek to appeal a conviction.
Contact a proven Georgia federal criminal appeals attorney for further information.
Source: CNN, “Appeals court dismisses lawsuit over warrantless wiretap program,” Bill Mears, Aug. 8, 2012