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).