That is a disquieting case that sets an insane precedent, but note that it does not enable the USG to use unwarranted foreign SIGINT to introduce evidence in a criminal case. (Hopefully this comment clarifies instead of sounding dismissive; that citation was very helpful).
> That is a disquieting case that sets an insane precedent, but note that it does not enable the USG to use unwarranted foreign SIGINT to introduce evidence in a criminal case.
That's what parallel construction is for, which is rather orthogonal to the issue of whether the target is a foreign citizen located in a foreign country at the time of the arrest or a US citizen in the US at that time.
And also note that options for action based on NSA surveillance aren't limited to arrest followed by criminal prosecution.
Parallel construction relies on having other law enforcement agencies available with which to conduct the parallel evidence (re-)gathering.
How would that work in a foreign country? It seems at the very least we'd have to have FBI or similar in their country (which limits the possibilities to nations with agreements that permit this).
The U.S. LE agent abroad would then still need to be able to detain and search for the evidence to re-locate, all while maintaining U.S. rules of evidence, and all while not getting arrested by the host nation in the process. The latter sounds like a guarantee to me if you should even whisper a hint that "parallel construction" is taking place over there.
A counter-argument is that Constitutional protections are not all considered to apply on foreign soil by U.S. courts, but given that these actions would be taken by an agent of the USG I'm still not sure how such a case doesn't get thrown out immediately.
> And also note that options for action based on NSA surveillance aren't limited to arrest followed by criminal prosecution.
The fact that the person was in a foreign country doesn't mean that there isn't evidence available to domestic law enforcement agencies.
> But nor are the options literally infinite.
Sure, but while arrest and criminal prosecution may be more problematic (though not impossible) with a foreign citizen in a foreign country, extrajudicial killing is generally less problematic there, largely for political reasons (and, in large part, as a consequence of the perception that arrest and criminal prosecution is more difficult.)
So, I wouldn't agree that being outside of the USA makes you safer from any consequences imposed by the US government as a result of surveillance information gathered by the NSA.
> Sure, but while arrest and criminal prosecution may be more problematic (though not impossible) with a foreign citizen in a foreign country, extrajudicial killing is generally less problematic there, largely for political reasons (and, in large part, as a consequence of the perception that arrest and criminal prosecution is more difficult.)
Yes, that's a good point. Even with some form of executive due process it will never be likely that foreigners abroad have more or equal Constitutional protections than citizens on U.S. soil, and the NSA could tie back into that.
The parallel construction discussion is also very complicated. I should be clear: you're right, the comment made upthread about how noncitizens are insulated from the impact of US surveillance was not valid.
