Strict controls aim to keep politics out of surveillance (Phila. corruption probe)

Philadelphia Inquirer ^ | 10/20/03 | By Joseph A. Slobodzian

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Posted on Mon, Oct. 20, 2003

Strict controls aim to keep politics out of surveillance

By Joseph A. Slobodzian Inquirer Staff Writer

The bug, electronic eavesdropping, Title III, the wire.

By any name, electronic surveillance has been called law enforcement's most effective - and intrusive - tool.

And, 35 years after a federal law authorized using electronic surveillance, its role in criminal investigations remains poorly understood by the public. For starters, an affidavit seeking its use often runs 25 pages or more.

Some people are quick to attribute political motives for its use, as is the case now with Mayor Street, but national experts in electronic surveillance offer a different view.

"Look, I used to work in the Justice Department, and historically there has been, from time to time, some politically motivated use of electronic surveillance," said Patricia L. Bellia, a Notre Dame Law School professor and coauthor of the book Law of Electronic Surveillance.

"That said, I have never seen anything like that in my time. The controls in place are very stringent."

Despite Attorney General John Ashcroft's low reputation among civil libertarians, Bellia said, the Justice officials who usually approve electronic surveillance are "careerists, not political appointees."

One reason for misunderstandings about electronic surveillance is that, as with sausage, the public is rarely privy to its making. Even after indictments become public, the underlying evidence presented to the federal judge who approved a bug, as well as where and how it was placed, seldom does.

In the Philadelphia case, Bellia said, the first step would have been for FBI officials to apply to one of a handful of high-ranking Justice officials for permission to use a bug.

Bellia, who clerked for Supreme Court Justice Sandra Day O'Connor and became familiar with electronic surveillance in the Justice Department's Office of Legal Counsel from 1997 to 2000, said the approval list is select: the attorney general, the deputy attorney general, or assistant attorneys general in the Criminal Division.

This first review is the dry run for getting approval from a U.S. district judge.

Under the 1968 law authorizing electronic surveillance, known as Title III, Bellia said, the FBI must outline evidence that shows "probable cause" to believe a serious federal crime - bribery, racketeering, terrorism, major frauds or drugs - is taking place.

The FBI must identify the individual it wants to listen to, the specific crime and why a listening device will show evidence of the crime, and that it has exhausted all other investigative options or that those options are "too dangerous."

Once the application is approved by Justice, Bellia said, the FBI has 48 hours to get it approved by a federal judge.

Bellia said applications for electronic surveillance are much more detailed than search warrants and the "legal standards" much tougher.

"Think of it as a search warrant on steroids," said Clifford S. Fishman, a Catholic University law professor and former Manhattan prosecutor and author of Wiretapping and Eavesdropping. "If for a search warrant you submit three or four pages, the affidavit for electronic surveillance might run 25 to 30 pages."

Then, to the judge.

"It's not a rubber stamp, if that's what you're asking," said Center City lawyer Louis C. Bechtle.

Bechtle, 75, should know: from 1969 to 1972 he was U.S. attorney in Philadelphia. In 1972, he was appointed to the federal bench by President Richard Nixon; he held the job until two years ago, when he retired to become a mediator for the Conrad O'Brien Gellman & Rohn law firm.

Bechtle said he recalls denying applications for electronic surveillance and, more often, requiring more information and imposing extra restrictions.

Bechtle said electronic surveillance is such an intrusion into citizen privacy "that I took it very seriously. Every judge I ever knew took it seriously."

Bechtle said judges also require the FBI to show how it will "minimize" surveillance so the taped words are limited to the individual and criminal conduct specified in the application for the bug.

Bugs are approved for up to 30 days, Bechtle said, during which the judge gets detailed reports. The bug can be extended if a new application is filed.

Although political motives are easy to infer because a bug was discovered weeks before the mayoral election, experts say practical considerations make that unlikely.

Because of the amount of evidence needed to persuade a judge to approve electronic surveillance, Fishman said, bugs are usually used late in an inquiry, meaning the Street administration probe is likely more than a year old. Law enforcement officials say the investigation has been under way for nearly two years.

Political-motive theories are "hard to believe," Bechtle said. "Something like this [bug] is just one piece of information in a much larger investigation. And its discovery before the election doesn't really mean anything, because these things are not supposed to be found."

Fishman agreed, adding that the political-motive theory requires that "you assume you're going to have criminal charges out in time to have a significant impact on the electoral process. To me, there's just too big a chance it will blow up in your faces."

One surveillance expert, who asked not to be named, said he thought there was one scenario in which politics might have motivated the bug in Street's office at this time: if the FBI feared Street might lose the Nov. 4 election.

The theory goes like this: Concerned that a Street loss might dry up schemes under investigation, the FBI installs a bug in an eleventh-hour push to get as much evidence as possible.

But to score politically with this theory, the expert added, you have to believe the FBI let the bug be found.

"This was a huge black eye for the FBI, a huge embarrassment," the expert said. "Only someone with the intellect of a 20-watt bulb would say that the FBI put the bug there so it would be found."

Contact staff writer Joseph A. Slobodzian at 215-854-2658 or jslobodzian@phillynews.com.

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