Resolution resolved: The United States federal government should substantially curtail its domestic surveillance. Violations

Surveillance includes wiretaps, tracking devices, and undercover agents

Walen 11 Alec Walen, Associate Professor of Law, Rutgers School of Law, Camden; Associate Professor of Philosophy, Rutgers University, New Brunswick. Journal of Criminal Law & Criminology Summer, 2011 101 J. Crim. L. & Criminology 803 SYMPOSIUM: PREVENTIVE DETENTION: CRIMINALIZING STATEMENTS OF TERRORIST INTENT: HOW TO UNDERSTAND THE LAW GOVERNING TERRORIST THREATS, AND WHY IT SHOULD BE USED INSTEAD OF LONG-TERM PREVENTIVE DETENTION lexis

Consider first what we can expect to do with surveillance. If there is probable cause to believe that a person is involved in criminal activity (including, of course, terrorist activity), a warrant could be obtained to wiretap his phone or computer communication. n78 Or, if there is probable cause to believe that he is an agent of an FTO, a FISA warrant can be obtained to do the same thing. n79 But someone plotting to commit a terrorist act, particularly once he has already been detained and questioned, must suspect that the government will be watching him in that way, and will avoid saying anything revealing on the phone or in mail (whether electronic or paper). He will communicate in person.

Another way to use surveillance would be to track his movements, either by putting a tracking device on his car n80 or even on his person. n81 But where one goes is not itself incriminating. If he went to the home of other STs, that might be helpful in building a conspiracy case. But it would only be a first step. Without more, there would be insufficient evidence to convict. n82

The most useful form of surveillance would involve undercover agents who offer their services to help him carry out a terrorist plot. n83 If someone is not well networked into a terrorist organization that has done careful vetting, it would be hard for him to know that a person is an undercover agent who cannot be trusted. But if someone either has the capacity to operate essentially as a lone wolf, or has the right connections to help him vet his contacts, he will not easily be taken in by undercover agents.