Innocent men and women were spied on. Several years of private phone, bank, tax, and email records were secretly seized, and a handful of families were subjected to armed pre-dawn raids of their homes simply because they engaged in political speech. To top it off, prosecutors and, even worse, a judge slapped these targets with a gag order to keep them silent. They didn’t want the public to know how far their government would go to undermine voters at the ballot box, and people who believed fervently in a cause.
Much like the Federal Intelligence Surveillance Act Court, Wisconsin’s unusual John Doe law gave prosecutors exceptional powers to conduct secret investigations on the thinnest showing of suspicion, with a judge as a one-sided partner. There is no adversarial process to determine probable cause, and the retired judges who presided over the court had no immediate accountability.
No one was ever charged with any crime, but lives were turned upside down and reputations were destroyed as prosecutors illegally leaked private documents to the press. Fortunes were spent on lawyers to defend conduct that, in the beginning and in the end, was legal.
Secrecy and a lack of accountability allowed prosecutors to turn the John Doe law from a useful law enforcement tool intended to protect the reputation of the person being investigated into an abusive weapon. The investigation went on for years, and in a sense it is not over yet. The innocent subjects of that investigation still have not received their property back from snooping bureaucrats and prosecutors. It has been more than six years.
When we learned about the vast abuses by state government officials, I worked with Walker and my legislative colleagues, including some Democrats, to end the abuse. The reforms I authored limited John Doe powers to only those crimes where secrecy really is needed, such as gang-related crimes as to which witnesses may be fearful, crimes involving children, and unsolved murders or possible murders, where the risk of smearing innocent people also is high. We eliminated the unconstitutional gag order against those under investigation and required prosecutors to renew their authority for an investigation every six months before a panel of duly elected judges who might at least be held accountable by voters.
We did that in Wisconsin. Now Congress must act similarly to fix the current FISA warrant process so it cannot be weaponized against our citizens.