America has experienced its versions of Israel's current NSO Pegasus spying scandal. I have been on defense teams in such cases where it was learned amid a criminal trial that the government had obtained important prosecutorial information by means of illegal fact gathering.
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In America, the Fourth Amendment to the Constitution spells out the core requirement that evidentiary searches and seizures must be legally authorized in advance by a judge "upon probable cause." The police or other prosecutors ask a judge to approve a warrant. The warrant specifies a location to be searched and the specific object or person sought. Sometimes a judge may authorize wiretapping a telephone. In a different era, even bugging a telephone booth.
It was during just such a phone-booth wiretapping that the United States government, while investigating an Italian crime family, learned that a rabbi who had become famously aligned with one of their principals was in peril, targeted by an opposing Italian family. In other cases, other members of Jewish "underground" organizations who were in the fore of the fight for liberating Soviet Jewry, were bugged at home or in their cars as the FBI sought to prevent or, after the deed, prosecute bombings of Soviet buildings in New York and Washington, D.C. Many of these incidents ultimately have become part of the law and lore of the 1970s Soviet Jewry movement.
In the Torah, we all know the story of how Eve induced a willing Adam to eat forbidden fruit from the Tree of Knowledge. The rabbis of the Talmud debate whether that fruit was an etrog (citron), pomegranate, olive, fig, or date. Interestingly, none assumes an apple. That is how the Midrash approaches that narrative. However, American Constitutional jurisprudence proceeds along a different course:
If the government, with all its enormous prosecutorial powers, unlimited professional staffing and endless finances at its disposal, proceeds to obtain evidence illegally without first obtaining a proper search warrant authorized by a judicial magistrate, then not only is that tainted evidence stricken, but also any "fruit of the poisonous tree" is forbidden.
In other words, if perfectly legitimate new evidence next is uncovered – but only thanks to the guidance and hints offered by the tainted evidence that initially was obtained illegally – then that "perfectly legitimate" new evidence also is banned. As an example, if an illegal wiretap picks up a conversation that identifies where stolen loot is stashed away, and the police then obtain a perfectly legitimate warrant to search at that exact location for that exact contraband, then the stolen goods that ultimately are uncovered will be banned as evidence at trial. Yes, if those goods had been found independently from the illegal bugging, fine. But if the goods were uncovered only because of the lead that was obtained illegally, then the new evidence is "fruit of the poisonous tree" – and therefore likewise is deemed poison.
In cases ruined by the most notorious of police and government enforcement violations, even murder convictions are overturned in America when evidence critical to the conviction has been obtained illegally – even when there is no doubt by trial's end that the correct murderer has been convicted. American jurisprudence believes that, evil as it may be to turn a murderer loose, it is much greater an evil to countenance governmental abuse of its vast spying powers. Consequently, only such a severe remedy as a dismissal upon appeal can intimidate renegade prosecutors from repeating such abuses time and again. Only if they know their evidence will be stricken down will they be deterred from turning a free country into a police state over time.
Israel's citizens now are confronted by terrible news that has seen the most advanced of NSO Pegasus spyware allegedly used to investigate apparently innocent citizens. This really is outrageous, and "heads need to roll" at the highest echelons of law enforcement. NSO Pegasus investigatory tools, meant to protect from crime, never should be wielded against innocent civilians unless authorized by magisterial warrant.
If Pegasus spyware was used to gather evidence illegally against key witnesses in the Netanyahu trial, if key evidence was derived as fruit of the poisonous tree, this could have far-reaching implications on whether the trial can move forward. That now must be investigated – and a proper warrant is a good way to begin.
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