By KENNETH DEL VECCHIO
The FISA Memo propounded by Rep. Devin Nunes (R – CA) birthed an awakening of civil liberties violations that had been largely tucked away in an isolated corner of America’s hallowed criminal justice system. Criminal defense lawyers and activists of varied stripes had never relented in the struggle to prohibit the government from its intrusions upon citizens’ constitutional rights. Battles in the courts had persistently raged over unreasonable searches and seizures, illegal wiretapping and other illicit surveillance, and spicy incantations of privacy invasions by law enforcement officers. The public, however, had not heard all that much about it in recent years. And, more so, law enforcement had become emboldened, to a far greater degree than the historical “usual”, to usurp Americans’ civil liberties.
The bad cops were engaging in troubling conduct. And, largely, they had been getting away with it. A secret court, such as the FISA court, allowed the police misconduct to run more rampant in cases that purportedly involved matters of national security and allegedly illegal dealings with foreign governments. The pervasive civil liberties violations in recent years, however, have not been limited to the clandestine FISA Court. These unlawful acts of surveillance have occurred across the board, by law enforcement officials at every level.
But the illegal surveillance was not unknown – nor ignored – by the good guys in the law enforcement business.
What many of the bad guys did not know is this: the good guys have been surveilling them – and their misconduct.
There are two types of illegal wiretapping of phones, home/office/automobile bugging, email and computer hacking, etc. Those where a warrant for the surveillance is actually procured by law enforcement, but it is not grounded in probable cause. And those where no warrant is obtained, and the police are simply surveilling subjects with no judicial supervision at all. The former unsavory conduct is the method that occurred in the Carter Page case (the subject of the FISA Memo). In February, I wrote an article – The Spies, Secret Courts and Many Dangers Revealed by the FISA Memo – which thoroughly explains the legal shortcomings in the warrant application submitted by the FBI/DOJ in the Page matter and, thus, why the surveillance of Page was unlawful; there was absolutely no probable cause for the warrant. That article further examines whether or not there was criminal conduct perpetrated by any of the parties involved in that particular case.
In a matter where the court has been misled by law enforcement, only those lawbreaking officers will be subject to punishment for purposely and falsely generating probable cause. Where judges are in on the unlawful “findings” of probable cause, they too can face penalties for the civil liberties violations. The cases where law enforcement take it upon themselves to illegally surveil people (without ever even going to a court) obviously only subjects those officers to punishment.
Today’s climate, via the “revelations” from the FISA Memo, has put both illicit police and judges in jeopardy of firings and criminal prosecution. With the cat out of the bag so publicly, the tireless work of the criminal defense lawyers and activists is now being aided by elected officials, media, and the courts and law enforcement themselves. It is true that all of these parties have, in past years, been players in righting the wrongs of constitutional invasions, but now they will be doing it at a higher degree because of the outcry flowing from the FISA Memo.
And this brings us back to the good law enforcement officers who have long been monitoring the bad law enforcement officers. A fundamental reality in law enforcement is that there are competing agencies. Also, within large (and even smaller) agencies, there are people competing with each other. More so, like in every profession, there are good and honest individuals – and there are evil ones. The good ones are watching the bad ones. The bad ones, so often overly-consumed with their power posts, in layman’s terms, get wildly carried away with themselves. They think that the law doesn’t apply to them, they falsely believe that they are immune to prosecution, and they arrogantly believe that they will never get caught. What some don’t know, is that they are already caught—but they may or may not be punished for it.
I am fully aware of – and have been directly told by some of the good guys – that illegal surveillance has been perpetrated by some of the bad guys, in matters quite personal to me.
I have previously stated in another article, “There’s constant secret surveillance going on. One law enforcement agency is doing improper surveillance. I know about it. And so I go to another top law enforcement agency who knows about the illicit surveillance. They tell me that they’re monitoring it and if it gets to a certain level, they will stop those who are engaging in the illicit surveillance, and they will be penalized. Same thing for non-public unlawful investigations that are occurring.”
If the surveillance crosses into a certain level of illegal activity – meaning where any unlawful charges are filed (or the surveillance is persistent) – then the officials involved with the illegal surveillance/unlawful charges will not only lose their jobs, but they themselves will be prosecuted. If that line is not crossed, however, they will not face any punishment. And I can accept that.
In the past, I have been criticized by a few journalists/lawyers/activists for accepting this. I’ve been asked that if I really have a Libertarian-type outlook, how can I accept this? And my response was:
“In these circumstances, I let that top law enforcement agency handle it because, in the end, I will be protected. They have their reasons to jump in when they determine. And if the illicit surveillance and non-public investigations stop, then the issue is remedied. If they don’t stop, eventually they’ll get fired and prosecuted, and I’m protected.”
The truth is that it would cause the good law enforcement officers serious detriment if they came forward when illegal surveillance and illicit investigations are at, what they deem, a lower level. If they out themselves over the “lower level” occurrences, they would compromise their own surveillance of the bad law enforcement officers. And they would suffer other internal conflicts. So, I believe, in the balancing test, justice is preserved by the good guys coming forward – and securing punishment against the bad guys – upon them crossing that line into the “higher level” acts of misconduct (i.e., unlawful charges or persistent illegal surveillance).
So, in my personal matters, I have been – and am – content. If that line is crossed, the arrogant, illicit actors will have the shock of being terminated from their abusive positions of power and thereafter be the ones criminally prosecuted. And if they never cross that certain line, they escape penalty. So be it: it is the will of the good guys, who have conflicting duties – and I have to respect that because they have been gracious enough to alert me of the ill and, more so, ensure my protection (and the punishment of the wrongdoers) if that line is crossed.
And now, with the FISA Memo and the shakeup it has caused, in other matters where the line has been crossed, a more proactive approach will be taken: wherein the proper parties will more often be vindicated—and the improper parties will more often be punished.
Kenneth Del Vecchio is the author of some of the nation’s best-selling legal books, including a series of criminal codebooks published by Pearson Education/Prentice Hall and ALM/New Jersey & New York Law Journal Books. He is a former judge, a former prosecutor and a practicing criminal/entertainment attorney for 23 years, wherein he has tried over 400 cases. Mr. Del Vecchio is also an acclaimed filmmaker who has written, produced and directed over 30 movies that star 100+ film and TV stars, including several Academy Award and Emmy winners and nominees. His films are distributed through industry leaders such as Sony Pictures, NBCUniversal, Cinedigm, and E-1 Entertainment. He has starred in numerous movies, as well. A best-selling political thriller novelist, he penned his first published novel at only 24-years-old. Additionally, Mr. Del Vecchio is the founder and chairman of Hoboken International Film Festival, called by FOX, Time Warner, and other major media “One of the 10 Biggest Film Festivals in the World.” A frequent legal and political analyst on networks such as Fox News Channel, Mr. Del Vecchio formerly served as the publisher and editorial page editor for a New Jersey daily newspaper.
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