Having spent a career in federal law enforcement, this writer understands the tension inherent in our constitution as the rights of the accused are balanced against the rights of the government. Our courts, of course, have the burden of determining when the rights of one supersede the rights of the other. Nevertheless, the recent revelation by the Omaha World-Herald, through reporter Todd Cooper, that FBI agents in Omaha planted a listening device in the attorney-clergy room of the Douglas County jail is, at minimum, disappointing. In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. Basically, the test for the courts is whether a reasonable man would have an expectation of privacy in a particular setting. The courts have ruled, for example, that a phone booth has that expectation and more to the point, so does an attorney-clergy room in a county jail.
In this case, the agents involved felt they’d found a “loophole” that allowed them to plant a listening device in a legally protected area. But whether a court agrees or not, one must ask: at what price? Imagine you were the one whose conversations were taped. Whether in an attorney-clergy room, a confessional or in your own home, would you feel violated to learn the government had recorded you without obtaining a warrant? Most people, no doubt, would be outraged. Do we, as citizens, have a right to expect our government and its agents to act in accordance to the intent of the law or should we expect them to test its limits whenever possible? The government’s failure to obtain a warrant in the current matter brings to mind the adage “it’s better to ask forgiveness than permission”.
Do you remember when we learned that FBI agents assigned to interview prisoners at Guantanamo refused to condone the torture of their suspects? This writer felt a sense of pride that those agents were not only men and women of character, but they were expressing supreme confidence that the Constitution of the United States is a viable document for our criminal justice system, even in matters so important as to impact the very existence of our country. Now we learn that Omaha FBI agents planted a listening device in the Douglas County jail attorney-clergy room over a marijuana case. Can this be the same FBI?