The Trial of Benjamin Netanyahu has run into a bit of a snag. According to recent charges by the defense, the prosecution have benefitted from illegal wiretapping, spying, and other such underhanded tactics. Pegasus spyware was reportedly used to monitor Netanyahu’s son and others of his confidants.
What would happen if this trial was conducted under United States’ standards? The doctrine, “fruit of the poisonous tree” would have prevailed, and anything found as a result of these machinations, whether directly or indirectly, would have been tossed out of court.
The Fourth Amendment to the Constitution provides that all governmental searches must be conducted with strict limitations. They must be based upon “probable cause.” No hunting and fishing expeditions allowed. A judge must issue a warrant, prior to the investigation. This document specifies the who, where, why and when of the search. It is considered illegal fact gathering if these provisos are abrogated. There are severe repercussions when this occurs.
Suppose something untoward was discovered through this illegal process. The prosecution may not then, in an entirely licit manner, seek to obtain the same information. Since the initial discovery was made via a rule violation, anything based on that information, too, is precluded, even if, in the ordinary course of investigation, it would have been unearthed, without the help of the illicit search.
The courts take these limitations very seriously. There have been cases in which it was abundantly clear that the man accused of murder was indeed guilty of this crime. Evidence attesting to this fact was garnered entirely legitimately. But information previously attained improperly was used in that search. The actual guilty party was set free.
In Israel, the Pegasus spyware of the NSO Group Technologies (NSO stands for Niv, Shalev and Omri, the founders of this organization) was reportedly used against former Prime Minister Netanyahu. If so, and to the extent Israeli law is congruent with our own, anything found out to his detriment will be tossed out, whether unearthed directly or indirectly.
Why such stringent results? The philosophy behind this practice is that the government is the most powerful institution in society. Prosecutors can call upon almost endless resources, vast manpower, and legal expertise. The fear is that dictatorship is just around the corner unless the wings of this organization are at least somewhat clipped.
But is there not a better way to accomplish this entirely justified goal? At present, the main- if not the only- incentive operational upon government employees to conform to these rules is that if they do not, guilty parties will be set free. Yes, this is powerful motivation, but we can do better. For, at present, they, themselves, bear no direct costs. Surely, it would be better from a pragmatic point of view that a murderer be made to pay for his crime rather than be let go as a result of prosecutorial misconduct; and instead the guilty parties, the police who violate warrants, the prosecutors who fail to make available to the defense material they are legally obliged to supply, etc., be themselves punished.
However, there are more than mere utilitarian considerations in support of this suggestion. Yes, the philosophy of limited government is an eminently justified one. But, too, this “fruit of the poisoned tree” perspective violates another principle of just law: that the guilty party should suffer, not innocent bystanders. A murders B. Due to the malfeasance of C, A is allowed to go, to roam free. This negatively impacts the D’s, the wife and children of B, and other potential victims. Surely, C should be if not fired, and least fined. His prospects for promotion should be curtailed. D should not be made to bear the brunt of C’s error.
If Netanyahu is really guilty of the crimes for which he is charged (I pray he is not; I am a big fan of his), he should pay for them to the full extent of the law. He should not be given a bye due to police and prosecutorial error. Otherwise the D’s in Israel, the entire populace, will suffer. So will the rule of law, and, with it, civilized order.
Walter E. Block is Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics at Loyola University New Orleans and is co-author of An Austro-Libertarian Critique of Public Choice (with Thomas DiLorenzo).
READER COMMENTS
Alan Goldhammer
Mar 9 2022 at 12:54pm
This disclosure should have been at the top of this column rather than buried in the final paragraph. I tells me all I need to know about everything that preceded it.
Christophe Biocca
Mar 9 2022 at 1:22pm
Block is taking a position in favor of allowing incorrectly-collected evidence that supports the prosecution’s to be used in the trial, instead making whoever the incorrect collection face charges for that. Whatever the merits of this position, it’s more likely to result in a conviction than the current approach.
If that’s biased in favor of Netanyahu, what’s the neutral position? “We don’t need a trial, the prosecutor’s word is good enough”?
Aaron Franklin Esq
Mar 9 2022 at 2:44pm
Dear professor, you write
“Surely, it would be better from a pragmatic point of view that a murderer be made to pay for his crime rather than be let go as a result of prosecutorial misconduct; and instead the guilty parties, the police who violate warrants, the prosecutors who fail to make available to the defense material they are legally obliged to supply, etc., be themselves punished.”
The crux of it as I see it is: a Hobbesian divine right and immunity vs the theological belief in error of government.
The Judeo-Christian position is that anointing a king was merely a concession by God; Leviticus clearly states that if the leaders of the people sin or err, they must bring penance by buying & sacrificing an animal. Cleary, the Bible recognizes that government leaders err and must pay some compensation. A costly signal & skin in the game. The Talmud states that a judge is personally liable for an error of judgment, such a deeming a carcass ill prior to slaughter and therefore dangerous to eat (An FDA like regulation); See Sanhedrin 33a. [The exception is when a judge is deemed an “expert” in that field, he attains some immunity.]
The American judicial system has been in a knot. On the one hand taking the British-Roman view of the divine leader, and on the other, creating branches of government similar to the Judeo-Christian view (Priest vs. Judges vs. King) without sorting the personal liabilities and risk of the parties accordingly.
As such, I tend to agree with the instincts stated here (and Robin Hanson’s’ personal liability view of enforcing laws and regulations.) We must abrogate immunity from all the branches (save possibly the legislative.) It seems abhorrent that a police officer can mistakenly kill another man in his home, and receive immunity.
Enforcement of the 4th Amendment by Judicial fiat has been a failure. I do think abrogating immunity will foster greater justice and less political prosecution.
Juan Manuel Perez Porrua Perez
Mar 9 2022 at 4:36pm
There is a fundamental misconception here: as far as criminal law is concern, the State is the offended party (it is the King’s peace that is being breached here). The State is the one that is pursuing the crime on its own behalf, which means that doctrines that give an incentive to the State to adhere to its own procedural rules actually do make sense.
Now, whether the limitations due process imposes in criminal cases are too restrictive, or whether the “fruit of the poison tree” is the best way to make the State adhere to its own rules, is another question. That should be decided on the basis trading off the costs of wrongful convictions (that is, wrongful punishment) and the costs of wrongful acquittals (the impact on the extent the crime is deterred as a result of a higher standard for the legality of the evidence presented).
The thing is the punishments that inflicted by the State are more severe than any damages that a private third party might be able to recover in a civil suit, which means that there will always be a greater cost to errors from wrongful convictions by the State relative to private individuals. That doesn’t mean, however, that evidence gathered illegally in a criminal prosecution should not be available to damaged third parties in any civil claim that they might choose to pursue (in fact, it seems only fair that they should be able to do so if the State fails to convict a guilty person for a crime because they themselves committed a procedural violation).
That was precisely the issue in the Bill Cosby case: the prosecutor decided to give Cosby immunity from criminal prosecution in exchange that Cosby admitted culoability in a civil lawsuit against him, letting some of his victims to recover damages from Cosby. But, then the next prosecutor indicted and convicted Cosby anyway (who, again, admitted on the record that he was in fact guilty). Now, in the case of former PM Netanyahu, almost all of the charges against him are all for misconduct while in office, in his capacity as a government official. In the terminology of the article: A = Binyamin Netanyahu, B = C = State of Israel. That is, the victim of Netanyahu’s alleged corruption is the State of Israel itself. There are no other affected parties, no Ds. The only one of the charges where the analysis in the article might apply is the charge that relates to the two newspapers, Yediot Aharonot and Israel Hayom (a competitor of Yediot Aharonot), Netanyahu is being accused of trying to pass legislation to harm Israel Hayom (it did not in fact pass) in exchange for favorable coverage of Netanyahu in Yediot Aharonot (which has a larger circulation in Israel than the pro-Netanyahu Israel Hayom). So, the D in that case would be Israel Hayom, whose commercial interests were threatened.
Anyway.
Ezra
Mar 15 2022 at 6:38pm
Public officials are to higher state of culpability than an average citizen. Public officials should be demanding that they be spied upon, so as to assure the public they represent that no hanky panky…. or any other kind of panky…. is going on. If Netanyahu is so adamant about his innocence, why isn’t he inviting a close look at his affairs, instead of taking every chance to stall and delay this trial?
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