Crime is at a low relative to a spectacular peak of crime so high that it challenged the safety of privileged rich white people in major cities. It remains a scourge of the underprivileged.
It's not just that I think "eavesdropping should be done by domestic agencies", but also that I think eavesdropping should be done under the aegis it has always supposedly been done under, one that acknowledges that eavesdropping is the most intrusive investigatory act the government can engage in, that monitors the private thoughts of individuals and in many cases causes defendants to effectively testify against themselves.
It would be difficult for a domestic law enforcement agency to build anything resembling the infrastructure NSA has built, for exactly that reason: the cost/benefit ratio just couldn't ever work out. That's why NSA/FBI "fusion" is so scary to me; it repurposes an infrastructure that has a workable cost/benefit because it's budgeted for in a military context. That's what I mean by incentive problems.
But once again: "parallel construction" isn't new. It's also what happens when highly-placed criminal informants help make cases against organized criminals; to use the CI themselves as part of the chain of evidence would be to risk losing that CI. I'm not sure how much the practice bothers me in this context. And, like I said: other parts of the "parallel construction" story bother me a lot more than the NSA evidence; for instance, our new unelected canine prosecutors.
> "parallel construction" isn't new. It's also what happens when highly-placed criminal informants help make cases against organized criminals; to use the CI themselves as part of the chain of evidence would be to risk losing that CI.
The difference is that the use of informants to generate investigatory leads is constitutionally unproblematic. There is no constitutional right to not be ratted out by an associate.
On the other hand, there is a constitutional right to the privacy of ones telecommunications. Therefore, using investigatory leads that are the product of illegal surveillance is constitutionally problematic, because of the fruit of the poisonous tree doctrine.
A failure to inform the defendant of how the investigation began deprives him of his ability to argue that the evidence against should be suppressed because it was obtained directly or indirectly as the fruit of an illegal search (wiretap).
No, the use of informants to kickstart an investigation without having that informant be in the chain of evidence is not Constitutionally unproblematic. Defense attorneys have campaigned against it for three decades. There is a complicated balancing act involved in using but not disclosing CIs, and it is very similar to the balancing act involved in using surveillance. It isn't helpful to pretend that one use is cut-and-dry and the other not.
It's not just that I think "eavesdropping should be done by domestic agencies", but also that I think eavesdropping should be done under the aegis it has always supposedly been done under, one that acknowledges that eavesdropping is the most intrusive investigatory act the government can engage in, that monitors the private thoughts of individuals and in many cases causes defendants to effectively testify against themselves.
It would be difficult for a domestic law enforcement agency to build anything resembling the infrastructure NSA has built, for exactly that reason: the cost/benefit ratio just couldn't ever work out. That's why NSA/FBI "fusion" is so scary to me; it repurposes an infrastructure that has a workable cost/benefit because it's budgeted for in a military context. That's what I mean by incentive problems.
But once again: "parallel construction" isn't new. It's also what happens when highly-placed criminal informants help make cases against organized criminals; to use the CI themselves as part of the chain of evidence would be to risk losing that CI. I'm not sure how much the practice bothers me in this context. And, like I said: other parts of the "parallel construction" story bother me a lot more than the NSA evidence; for instance, our new unelected canine prosecutors.