I was taught in law school that it is the eye of a judge looking over the shoulder of law enforcement that protects the people’s due process rights. That eye, according to one federal judge, is being encouraged to look the other way when it comes to requests for electronic surveillance warrants.
In an interview cited by the New York Times, Magistrate Judge Stephen W. Smith reports that he frequently considers requests by law enforcement to monitor the cellphone and e-mail records of citizens. He dutifully carries out this judicial obligation, but he has begun to wonder why such proceedings are kept hidden from the public.
“Courts do things in public,” Judge Smith said in the interview quoted by the Times. “That’s the way we maintain our legitimacy. As citizens, we need to know how law enforcement is using this power.”
In an effort to shine a bit of light on a subject he feels is being unnecessarily shrouded from view, Judge Smith has written an article describing (and decrying) the secrecy of a docket that, as the Times reporter records, “has no parallels in American history.”
As one might imagine, gathering the relevant research needed to write such an exposé was not easy. Judge Smith is quoted as saying that “even judges have difficulty finding out what other judges are doing.” Some of that activity is being discovered, however.
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