COMMENTARY
Rules on wiretapping a necessary burden
By Yasmin Anwar
Advertiser Editorial Writer
We have a criminal justice system intended to protect the innocent and punish the guilty. But it can only truly work if there's an adversarial relationship between the prosecution and defense that presents both sides of the story, and, in the best of cases, gets at the truth.
This principle is often forgotten in times of war or federalist campaigns to overstep states' rights.
Now is such a time.
Hawai'i's top cops have been lobbying for broadened electronic surveillance powers to fight the war on crystal methamphetamine.
Specifically, U.S. Attorney Ed Kubo, state Attorney General Mark Bennett and Honolulu City Prosecutor Peter Carlisle want the state to do away with the adversary hearing that requires a court-appointed attorney to represent privacy interests in court when police request a wiretap.
They say this extra hoop, which only Hawai'i and Ohio require, is so unwieldy that the state barely bothers to use wiretapping. According to the prosecutor's office, the last wiretap on O'ahu was sought in 1997.
Jim Fulton, a spokesman for the city prosecutor, says there's always the potential for information to be leaked from the hearing — possibly via witnesses — and get back to the suspect.
Of course, we want to see drug dealers put out of business. But before we sympathize with these supposedly hamstrung detectives, let's look at how the adversary works.
For starters, it's a confidential affair in which a court-appointed attorney is present to ensure that judges aren't rubber-stamping wiretap requests without determining probable cause, and that privacy rights are protected.
The attorney might cross-examine the state's witnesses — but those witnesses presumably could tip off the suspect with or without an adversary hearing.
Furthermore, shouldn't the fact that there are few, if any, adversary hearings weaken the case for changing the law?
"If you haven't really used the law, then how can you claim it's too burdensome?" said state Public Defender John Tonaki. He says that in 17 years in office, he has not seen one application for a wiretap hearing.
Even if the police truly have given up on wiretapping because it's too much of a hassle, do we really want to entrust the government with greater electronic surveillance power?
As history has demonstrated, the government can misuse its wiretap authority: to censor its critics, as did J. Edgar Hoover; or to tamper with the election process, as did Richard Nixon.
The U.S. Supreme Court outlawed wiretaps in 1967, but a year later Congress allowed them in limited cases. States generally have made wiretapping a tool of last resort.
The Administrative Office of the United States Courts, the agency charged with overseeing all authorized federal wiretaps, estimates that only 20 percent of monitored conversations relate to criminal activity.
Even federal wiretapping, whose guidelines Hawai'i hopes to adopt, must clear several hurdles. Agents must submit affidavits for probable cause, and Department of Justice lawyers must review the application on its circuitous route to a federal judge.
Of course, the USA Patriot Act hastily passed in the aftermath of 9/11 has muddied federal wiretapping limitations, breaking down the wall between intelligence-gathering and wiretapping for criminal investigations.
Under the Patriot Act, agents can skirt the tougher standards for criminal investigations, claiming they're gathering intelligence.
A 2003 report to the House Judiciary Committee found that the U.S. Justice Department has used its expanded surveillance and detention powers to pursue suspected criminals whose misdeeds bear no relation to terrorism.
States are discouraged from mimicking the federal wiretap law passed in response to the Sept. 11 terrorist attacks.
While most states don't require an adversary hearing, they're expected to meet other standards that maintain wiretapping as a tool of last resort.
In California as in Hawai'i, the burden is on police to prove there is no other way besides a wiretap to obtain needed information. Usually, a wiretap request will be approved for 30 days, and investigators are required to file reports every 72 hours as to whether and why the tap should be continued.
The law specifically says that information obtained during a wiretap that is not related to the crime under investigation cannot and should not be used to open separate investigations.
That was not the case for the Los Angeles Police Department, which was caught breaking that rule in the mid-1990s. Detectives were handing off wiretap evidence to investigators in other departments.
As a result, several hundred criminal cases faced the possibility of being overturned as defense attorneys appealed convictions based on illegal and unconstitutional wiretaps.
Hawai'i's adversary hearing is an inconvenient but perhaps necessary part of preventing wiretapping abuse.
In fact, the Hawai'i process arguably benefits the prosecution. The tempering process of an adversarial process lends weight to the claim that evidence gathered under a wiretap met all due-process considerations and constitutional standards.
Ask yourself this: What if your neighbors were convinced you were dealing drugs, and police wanted to tap your phone? Wouldn't you hope that someone in the system was protecting your rights to privacy and making sure the request wasn't solely based on gossip and innuendo?
If we're going to tinker with our state Constitution, shouldn't we have some fresh examples of how the process is or isn't working, rather than assertions that it cannot work because there's an extra hurdle involved that the feds and other states don't require?
