(February 10, 2022 / JNS) America has experienced its versions of Israel’s current police surveillance scandal. I have been on defense teams in such cases, where it was learned during a criminal trial that the government had obtained important prosecutorial information by illegal means.
In America, the Fourth Amendment to the Constitution spells out the core requirement that evidentiary searches and seizures must be legally authorized in advance by a judge “upon probable cause.” The police or other prosecutors ask a judge to approve a warrant. The warrant specifies a location to be searched and the specific object or person sought. Sometimes a judge may authorize the wiretapping of a telephone, and in a different era, even the bugging of a telephone booth.
It was during just such a phone-booth wiretapping that the U.S. government, while investigating an Italian crime family, learned that a rabbi who had become famously aligned with one of their principals was in peril, targeted by an opposing Italian family. In other cases, members of Jewish underground organizations who were at the forefront of the fight to liberate Soviet Jewry had their homes and vehicles bugged as the FBI sought to prevent or, after the fact, prosecute, bombings of Soviet buildings in New York and Washington, D.C. Many of these incidents have ultimately become part of the law and lore of the 1970s Soviet Jewry movement.
In the Torah, we all know the story of how Eve induced a willing Adam to eat the forbidden fruit from the Tree of Knowledge. The rabbis of the Talmud debate whether that fruit was an etrog (citron), pomegranate, olive, fig, or date. Interestingly, none of them believed it was an apple. That is how the Midrash approaches that narrative. However, American constitutional jurisprudence proceeds along a different course:
If the government, with all its enormous prosecutorial powers, unlimited professional staffing and endless finances at its disposal, obtains evidence illegally, without first obtaining a proper search warrant authorized by a judicial magistrate, then not only is that tainted evidence stricken but any “fruit of the tree” is forbidden.
In other words, if perfectly legitimate new evidence is uncovered—but only thanks to the guidance and hints offered by the tainted evidence—then that “perfectly legitimate” new evidence is also banned.
As an example, if an illegal wiretap picks up a conversation that identifies where stolen loot is stashed, and the police then obtain a perfectly legitimate warrant to search that location for that contraband, the stolen goods recovered will not be admissible evidence at trial. Yes, if those goods had been found independently from the illegal bugging, fine. But if the goods were uncovered only because of a lead obtained illegally, then the new evidence is “fruit of the tree”–and therefore forbidden.
In cases ruined by the most notorious of police and government enforcement violations, even murder convictions are overturned in America when evidence critical to the conviction has been obtained illegally—even when there is no doubt by the trial’s end that the correct individual has been convicted. American jurisprudence believes that evil as it may be to turn a murderer loose, it is a much greater evil to countenance the government’s abuse of its vast powers.
Consequently, only such a severe remedy as a dismissal upon appeal can intimidate renegade prosecutors from repeating such abuses time and again. Only if they know their evidence will be stricken down will they be deterred from turning a free country into a police state.
Israel’s citizens now are confronted by the terrible news that state-of-the-art spyware has allegedly been illegally used to investigate innocent citizens. This really is outrageous, and if the reports prove true, heads need to roll at the highest echelons of law enforcement.
If spyware was used to gather evidence illegally against key witnesses in the criminal trial of former Israeli Prime Minister Benjamin Netanyahu, or if key evidence was derived as the fruit of the poison tree, that could determine whether or not the trial can move forward. That now must be investigated—and a proper warrant is a good way to begin.
Rabbi Dov Fischer, a law professor and senior rabbinic fellow at the Coalition for Jewish Values, is a senior contributing editor at “The American Spectator.”
This article first appeared in Israel Hayom.
Jewish News Syndicate
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