Importance of Court Skepticism (II)

In United States v. Scarfo, the majority relies heavily on the testimony of Randall Murch, a Special Agent of the FBI working as Deputy Assistant Director of the FBI Laboratory Division’s Investigative Technologies Branch. As information about KLS is mostly classified (due to, what else, national security concerns), Mr. Murch’s testimony is needed to ascertain exactly how the warranted search was conducted. In his statement, Mr. Murch claims that claims that the FBI agents installed KLS in a manner that specifically avoided recording keystrokes when the modem was turned on, so as to avoid intercepting e-mails and other inter-computer communications, which would have violated the warrant.

That the court’s decision turned on the after-the-fact assurance, by an FBI agent, that the FBI practiced restraint in conducting their search is largely inconsistent with established 4^th amendment doctrine. Allowing unfettered, general warrants, which require restraint on the part of the investigating officers has never been a practice sanctioned by the court. Likewise, courts have been unwilling to accept “self-restraint” testimony as conclusive (most notably in Katz, rejecting the officer’s assurances that those conducting the wiretaps took great caution to only eavesdrop on relevant conversations in the phone-booth).

This trend should not come as a surprise, for the 4^th and 5^th Amendments were conceived with a specific distrust of the federal government in mind. Enforcing these protections through trusting the discretion of government agents seems inherently dubious, and in practice would likely eliminate the very values those Amendments are designed to preserve. Allowing governmental agents to interpret and present, post-hoc, the events of a case leaves too much room for corruption, misrepresentation of the facts, hindsight bias, and outright lying. After all, more than a few court commentators have described the battle over civil rights as a perpetual tug-of-war between the text of the Amendments and the enforcement arm of the government. Judicially empowering one side of this fight would upset the delicate balance that has been forged over the years by the Court.

Of course, expert testimony will always be necessary to gather the necessary facts of the case. But the bottom line is that courts are naïve if they entrust this testimony to governmental actors who may have a strong interest in the expansion of the enforcement arm’s power. Perhaps some sort of independent oversight mechanism would be in order. An agency or committee, with men on the ground or on the inside of the FBI, whose job it would be to ensure that violations do not occur and that investigations are accurately recounted in court, would preserve the authenticity of court proceedings without presenting an undue risk to national security.