re: #136 Absalom, Absalom, Obdicut

then you’ve got to give the defense attorney the chance to aggressively go after the circumstances of that wiretap

In a “standard” criminal case, that’s done after the arrest/indictment. It’s not during the warrant process. In pretrial, the attorney will move to suppress wiretap evidence and then make the Fourth Amendment arguments. The attorney will almost certainly not be aware of any wiretap before the fact and will not be notified, as is understandable.

In a “standard” criminal case, this process is complicated by the fact that the first wiretap will often lead to additional wiretaps on other targets, sometimes into the hundreds. This happened in the Raj Rajaratnam case — some 300 wiretaps have been publicly identified — and that process may still be ongoing, given the pending cases against SAC Capital Advisors.

That makes Fourth Amendment challenges infinitely complex in these large investigations. I have to imagine the cases moving through FISA are similar — any one target is the result of evidence reaped from earlier generations of targets. This material would be made available under seal to any defendant’s counsel, but after the fact, like a “standard” case.