Justice Department defends legality of vast DEA wiretap program

http://www.usatoday.com/story/news/2016/03/23/justice-department-defends-vast-riverside-wiretap-program/82182228/

The Justice Department offered its first defense this week of a once-vast eavesdropping program carried out by federal drug agents in the Los Angeles suburbs over the objection of government lawyers who feared it was illegal.

The Justice Department urged a judge not to throw out a series of wiretaps agents used to arrest an accused marijuana trafficker, saying the surveillance was “authorized in accordance with state and federal law.” That defense came in a filing Monday in federal court in Louisville.

The Kentucky case is the first major challenge to a surveillance program by the U.S. Drug Enforcement Administration and prosecutors in Riverside County, Calif., so large that it once accounted for nearly a fifth of all U.S. wiretaps. Monday’s filing was the first time the Justice Department  expressed an opinion publicly on whether it was legal.

In it, prosecutors offered a narrow defense of the halted wiretap program, arguing mainly that the accused trafficker’s lawyers had not offered up enough evidence that the particular taps used in that case violated federal law. But they  attached evidence that could help the defense make that case.

The challenge follows an investigation last year by USA TODAY and The Desert Sun that found the DEA and prosecutors in Riverside County, outside Los Angeles, had constructed a vast and legally questionable wiretapping operation that secretly intercepted millions of calls and text messages with the approval of a single state court judge. Justice Department lawyers refused to use the results in federal court because they did not think the surveillance could withstand a legal challenge.

Last month, defense lawyers charged that Riverside’s prosecutors  approved “illegal wiretaps with astounding frequency” and asked a judge to throw out recordings the government planned to use against Christopher Mattingly, who is accused of trafficking marijuana from California. “Riverside County made a mockery of individual privacy rights, ignored federal requirements limiting the use of wiretaps and permitted law enforcement to intercept telephone calls at their whim and caprice,” one of Mattingly’s lawyers, Brian Butler, wrote.

Federal law bars the government from seeking court approval for a wiretap unless a top prosecutor has personally signed off on that request, a requirement Congress added after the FBI wiretapped civil rights leaders in the 1960s. The only exception is when the district attorney is “absent” and has authorized someone else to act in his place, a federal appeals court ruled in 2013.

Riverside County’s former district attorney, Paul Zellerbach, has acknowledged that he allowed lower-level lawyers to do that job, saying he could not recall ever having reviewed a wiretap application himself. Four of the wiretaps in the Kentucky case were approved by one of Zellerbach’s assistants, and one was approved by an assistant to his successor.

Rather than defend that practice, the Justice Department argued Monday that Mattingly’s lawyers had simply failed to prove that Zellerbach was working on the days his subordinates approved the wiretaps prosecutors hope to use against Mattingly.

The defense, Assistant U.S. Attorney Larry Fentress wrote, “offers no evidence to support his argument, other than newspaper articles critical of the Riverside County District Attorney’s wiretap practices in general, but containing no specific information as to whether the DA was absent on the dates of the particular wiretap applications involved in the instant case.”

The government’s filing included copies of a calendar  kept by Zellerbach’s assistant, which Fentress called the “best evidence” of the former district attorney’s whereabouts on the days the wiretaps were approved. Most of it suggests he was at work, listing appointments in or near his office.

Fentress said that even if the wiretap applications were deficient, the problems were minor enough that the judge should not block the government from using them as evidence. “Their response in a nutshell is that what was happening in Riverside wasn’t very good, but it might be good enough to get by,” Butler said Wednesday.

A Justice Department spokesman declined to comment.

Riverside County authorities authorized 624 wiretaps in 2014, three times as many as any other jurisdiction in the USA. The county’s new district attorney, Mike Hestrin, said last month that prosecutors had largely halted the eavesdropping program; By mid-February, his office had approved 14 wiretaps, compared with 126 in the first two months of 2015.

Filed under: General Problems