Breaking News

Argument analysis: What makes wiretap orders “insufficient”?

The oral argument in Dahda v. United States started off on a bad note for Los Rovell Dahda, who was represented by Kannon Shanmugam. Shanmugam was asking the court to find that a wiretap order was “insufficient on its face,” and therefore triggered Title III of the Omnibus Crime Control and Safe Streets Act of 1968’s statutory exclusionary rule, because it authorized surveillance outside the issuing court’s territorial jurisdiction. Asking the first question, Justice Ruth Bader Ginsburg seemed to embrace one of the government’s central arguments. Yes, the district court “authorized more” than legally allowed by approving surveillance outside the court’s territorial jurisdiction, “but that more was never introduced” in Dadha’s trial. So, no harm, no foul. Later, Ginsburg returned to the same theme, noting that, “as applied, the orders did not violate the statute,” and then quickly adding that a ruling on that basis “seems to make good sense.”

Kannon K. Shanmugam for petitioner (Art Lien)

In responding to that general line of thought, Shanmugam began to refer to the “invalid, insufficient order” in the case. But that rhetorical approach made Chief Justice John Roberts suspect that a sleight of hand might be at work. In the chief’s view, Shanmugam was “mixing ‘insufficient’ and ‘invalid’” in a way that could be misleading:

ROBERTS: If somebody told you to bring to a party apples, bananas, and pears, and you brought apples, bananas, pears, and cherries, the person would not say that’s insufficient. Right?

SHANMUGAM: I think that a person might say that that’s insufficient. In other words, I think that -­

ROBERTS: Who would do that? I’m sorry.


Shanmugam then conceded that “there are circumstances,” like the chief justice’s hypothetical, “in which insufficiency necessarily means that something is lacking.” But when discussing insufficiency, the key question is: “Insufficient for what?” So, in the chief’s hypothetical, the question is whether there is insufficient food for a party. In this case, by contrast, whether a wiretap order is “insufficient on its face” arguably depends on the surveillance it purported to authorize. And, judged by that standard, the order does seem insufficient: Because it did not pertain to a “mobile listening device” — and so did not implicate a statutory exception allowing for extraterritorial surveillance — the order could be viewed as insufficient to authorize surveillance outside Kansas.

Later in the argument, the chief justice made a similar point during an exchange with Zachary Tripp, who represented the United States. Pushing against the point that he himself had advanced in his colloquy with Shanmugam, the chief asked:

ROBERTS: Mr. Tripp, one thing that — one thing that the statute requires is that the order identify the person authorizing the wiretap. Now let’s say you put your name down, Zachary Tripp, Assistant to the Solicitor General. You have satisfied the statute. You have identified the person authorizing the wiretap, but you’re not allowed to do that. Now … that’s invalid. Would you say it’s also insufficient?

TRIPP: Maybe you could read the statute that way. We — we don’t take it that far.  We think that when the statute -­

ROBERTS: So you think something that literally complies with the statute can be insufficient because it’s invalid?

Zachary D. Tripp, assistant to the U.S. solicitor general (Art Lien)

This exchange exploits the link between invalidity and insufficiency: When an order is invalid, it can be viewed as insufficient for what it purports to authorize. But just because invalidity can be understood as a form of insufficiency doesn’t mean it has to be. And some justices seemed attracted to the government’s view of insufficiency because it would yield results that accorded with Congress’ apparent purposes.

In an especially interesting exchange, Justice Samuel Alito suggested that Title III “was basically anti-crime legislation.” Then, stepping away from the statutory text, Alito tried to imagine what the enacting Congress would have done with the case at hand: “Do you think that if this situation had been presented to the Congress that enacted” the law, “that they would have said, yes, in this case, Mr. Dahda can’t be convicted even though what happened here had no effect whatsoever on him?” That question called for an imaginative reconstruction of Congress’ collective purposes, as applied to the facts in Dahda’s case. Shanmugam predictably replied with his contrary view of the enacting Congress’ goal — namely, “to compel compliance, strict compliance with the requirements of the statute.” And Shanmugam pointed to a Senate report that, in his view, supported that point.

Meanwhile, other justices, particularly Justices Stephen Breyer and Elena Kagan, explored a different type of insufficiency. As Kagan put it, perhaps the order was “lacking something” in that it did not include “anything about the jurisdictional reach of the interception.” In other words, the order didn’t expressly say that it authorized surveillance in Kansas, where the district court sat. At one point, Breyer suggested that the territorial limitation might be inferred because the order did indicate that the judge sat in the district of Kansas. But Kagan later worried that a ruling in favor of the government’s approach might allow judges to issue orders without clear geographic limits that are legally critical.

Justices Sonia Sotomayor and Kagan seemed troubled by the government’s apparent success in advancing its arguments about overbreadth and severability, given that (at least in their view) the Supreme Court had granted certiorari to resolve a different matter — namely, disagreement on whether the statutory exclusionary rule applies only to the “core concerns” of Title III. In an interesting move, Kagan suggested that the court might simply resolve that issue against the government and then remand the case, thereby deferring harder questions about just what does and does not have to be included in wiretap orders. As Kagan put it, “The one thing I’m sure of in this case is that there is no core concern requirement.”

During their final remarks, the advocates framed the case more in terms of statutory purpose and policy than text. Tripp chose to “admit that this statute is ambiguous” and that the Supreme Court “could potentially read it” as Dahda suggested. That fair-minded observation seemed designed to let the justices engage their intuitions about what kind of rule would — as Ginsburg had said — “make good sense.” And Tripp emphasized that a broad ruling in favor of Dahda might “be very damaging” for government investigations and prosecutions. Shanmugam responded in part by offering a different view of Congress’ goals. According to Shanmugam, “we can be certain” that Congress wanted “to ensure strict compliance with the statute’s requirements, and it created a muscular suppression remedy in order to effectuate that goal.” Dahda’s case may ultimately depend less on the statutory text than on which picture of legislative purpose the court finds attractive.

Recommended Citation: Richard M. Re, Argument analysis: What makes wiretap orders “insufficient”?, SCOTUSblog (Feb. 22, 2018, 12:39 PM),