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It's not hard to fix this problem without hurting morale. Change the primary thing that they should have morale about from protecting the security of the nation to protecting the values upon which this nation was founded, namely the Constitution and the Bill of Rights. Every single agent should know the Constitution back to front, inside and out, and see it as their job to protect it over all other objectives, including catching criminals (imho, we should substitute criminal for terrorist, whenever that person is within the borders of the United States and subject to its laws.). The atmosphere at the agency should be such that any subversion of the Constitution by colleagues and superiors should hurt morale among agency employees.

If you catch a criminal, but do so by subverting the Constitution, you should feel shame, not pride. When you have the power the agency has, it is of utmost importance that values be palpable in the air among staff. Power without obligation to something higher like the Constitution and Bill of Rights will always be debased in favor of achieving concrete objectives.

If we're worrying about hurting their feelings, we're having the wrong debate.

> Well, it makes sense that she'd say that since she's one of the two that rejected that the program is illegal.

Per the article, what the dissenters appeared to have done is reject the inquiry into legality as beyond the proper scope of the board's review. Its a fine distinction, to be sure, but there's a difference between a 3-2 split with three finding the program illegal and 2 finding it legal and a 3-2 split with 3 finding it illegal and 2 finding "we shouldn't be looking at legality at all".

I'm not saying that Brand is right, but there is reason to worry that this could happen again

There is reason to worry that a great many things could happen again. An increase in the number of Zoloft prescriptions in the greater Washington, DC area is pretty far from the top of my list of concerns.

Morale in this context is not about being happy or depressed. It's more of a technical term. It's about doing your job diligently and effectively. Low morale then would be shirking, dragging your feet, not following through, etc. "Because why bother, they don't like what we do" and then doing nothing, rather than less or different.

But, point taken.

It would be wonderful if all wiretaps were ruled illegal.

It would also be wonderful if all law enforcement officers were required to wear uniforms or identify themselves when in the course of their duties.

What's the problem with wiretaps, as long as you have actual independent judicial oversight? I don't have an issue with cops listening to cartel hitmen. Considering everybody as a suspect, that's entirely different.

> It would also be wonderful if all law enforcement officers were required to wear uniforms or identify themselves when in the course of their duties.

I see that now. "Hello, Don Corleone, I'm an undercover police officer, but please pretend you don't see my uniform".

There wouldn't be cartel hitmen if the thing wasn't illegal and hence profitable.

I have an issue with letting them listen--especially if I'm on the other end of the phone, for example, taking their order for pizza or arranging a playdate for my kids or something. It's the few-hops-away rule that is very easily justifiable that creates surveillance states.

If you unknowingly were setting up a playdate for your kids with a hitman, I think you'd have a vested interest in having the guy exposed and brought to justice.

As long as he hasn't hurt me or mine, what's it matter?

That same logic puts the friends of drone operators in a strange place, right? They kill civilians too.

> As long as he hasn't hurt me or mine, what's it matter?

You don't see anything wrong with cartel hitmen? The kind who lines up heads on the side of the road and torture people to death for effect?

> That same logic puts the friends of drone operators in a strange place, right? They kill civilians too.

Not quite. First off, it's much more likely that your cartel acquaintance will catch a bad case of drive-by shooting one of these days, kid or no kid. Secondly, sure, I'd feel weird knowing a drone operator, but AFAIK, they don't torture and kill civilians on purpose, it does make a moral difference.

But if I was setting up a playdate for my kids from someone who ordered pizza from the same place as a hitman...

Just for a purely hypothetical scenario:

If the FBI identified an organized crime hitman who killed 20+ people and left no evidence other than making incriminating phone calls, is it wrong for them to place a tap on his phone line once they have probable cause that he is a hitman?

Your hypothetical makes no sense. If they have "probable cause" before tapping his phone, that means that the "left no evidence other than incriminating phone calls" must be false.

Ok let's say they have some evidence that is sufficient to create reasonable suspicion, but probably insufficient to secure a conviction.

Why would it be wrong for the FBI, under the supervision of a court order, to tap this person's phone to see if he is the killer?

Keep in mind this is not a broad NSA dragnet here. This would be a targeted wiretap driven by probable cause and governed by the federal rules of evidence. The GP said "It would be wonderful if all wiretaps were ruled illegal," and we're exploring that idea.

No, it would not be as long as there was a court order and our judges have the time and sense of gravity to give each and every court order sufficient scrutiny to determine whether it has merit or is merely a fishing expedition. Wiretaps should also only begin once a warrant has been approved by a judge, any wiretap in bulk so you can retroactively get phone records and conversations from the date before the warrant was issued is unconstitutional. If the person in question kept their own records, the warrant can apply to those records, but to keep a tab on every American, innocent or otherwise, is disturbing.

Personally, I would love to see a two-factor commit with all warrants. All warrants should require two judges to sign off on them, one federal judge and one state judge where the wiretap will be carried out.

The other thing I would like to see is some sort of "cost" that the agencies must bear to be able to request warrants. It should cost each agency money to apply for warrants and they should have a limited budget each year to spend on warrant applications. At the end of each year, to apply for increases in this budget, they should present an equal number of both cases which they would have liked to pursue warrants on someone, but it was deemed outside the budget and cases where they pursued a warrant and got one, but the person turned out to be innocent. Such a policy applies market forces to limit rampant wiretapping and phishing expeditions. Instead they will adjust to only use their warrants on those people who actually should be wiretapped. This would also help prevent unilateral action by a single agent or team, without appealing to another independent group with power of the purse over warrant applications. Individual agents and teams would try to get warrants for all their suspects, but the group with power of the purse has the responsibility to dole out warrant applications according to merit so that the agency doesn't run out of them before year's end.

"under the supervision of a court order"

A court order is not a warrant. This is the heart of the discussion you are trying to get into. The 4th amendment is very clear:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If we allow a court order or a subpoena to continue to be all that LEO/LEA's to need to get whatever information they want, they will stop going to the courts for warrants, and worse, they will end up doing FISA style bulk orders/subpoena's.

Bottom line, if you have probable cause, get a fucking warrant, else, fuck off. (and companies should be requiring warrants for access to customer information too, not just setting up a pay portal for LEA's to peruse at leisure.)

A search warrant is a particular type of court order; a subpoena is another. As far as I know, there isn't really any overlap: search warrants authorize law enforcement to conduct searches, subject to fourth amendment restrictions; subpoenas compel parties to deliver documents or testimony, subject to fifth amendment restrictions.

Just replace the term "court order" with "warrant" above if it makes my point clearer.

The opinion that kicked off this sub-thread is that all wiretaps should be illegal. "All." That would also eliminate wiretaps that would be authorized under a warrant.

No, probable cause is not the same thing as evidence. His hypothetical is actually how warrants are supposed to work. Law enforcement have probable cause to suspect someone of being guilty. If they can make a strong argument about why the person is probably guilty, they then get a warrant to search for evidence in homes, phone calls, emails, whatever.

His hypothetical literally described the standard for getting a warrant.

> No, probable cause is not the same thing as evidence.

Probable cause is based on evidence.

> His hypothetical is actually how warrants are supposed to work.

No, its not.

> Law enforcement have probable cause to suspect someone of being guilty. If they can make a strong argument about why the person is probably guilty, they then get a warrant to search for evidence in homes, phone calls, emails, whatever.

And that "strong argument" is based on factual evidence that was either received through mechanism other than search and seizure, was the product of prior search and seizure in conditions that do not require a warrant, or was the product of prior warrant-based searches and seizures.

If there was no evidence left other than what was sought in the warrant, there would be no basis for probable cause to support the warrant.

>> No, probable cause is not the same thing as evidence.

> Probable cause is based on evidence.

From wikipedia, "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction.

In other word, you can get a warrant when you don't have enough evidence to secure a conviction, which in turn may lead to gather sufficient proof of guilt (or exonerate the suspect, I suppose).

Yes, and any standard of evidence -- even reasonable suspicion -- can't be met without the existence of evidence. That's why its called a "standard of evidence".

Again, if there is no evidence left by the "hitman" except the calls for which the warrant is sought, as specified in the hypothetical, than there can't be probable cause to support the warrant. There can't even be reasonable suspicion. In fact, without some kind of evidence, the only thing that could support the desire to seek the wiretap is arbitrary prejudice.

Fair enough. However, if we take the original premise and change it to "If the FBI identified an organized crime hitman who killed 20+ people and left no solid, non-circumstancial evidence other than making incriminating phone calls, is it wrong for them to place a tap on his phone line once they have probable cause that he is a hitman?", would you agree that wiretaps (with warrants) can be useful?

Circumstantial evidence can be used for a conviction, so the absence of non-circumstantial evidence doesn't mean that there isn't evidence sufficient for a conviction.

And, even if the FBI could know that a hitman left a series of incriminating phone calls without already having evidence which could be admitted against the defendant of the content of those phone calls, a wiretap based on a warrant issued after the fact wouldn't recover those contents.

Further, I don't think anyone in the thread has argued that wiretaps aren't useful in criminal prosecution, the issue which started this was a poster expressing that it would be wonderful if wiretaps were categorically outlawed, which does not require believing that they aren't useful in certain circumstances. It could, for instance, proceed from the belief that the capacity is so likely to be abused covertly in circumstances where it is inappropriate if its existence is tolerated at all, that the usefulness it has in the circumstances to which it is appropriate is outweighed.

"would you agree that wiretaps (with warrants) can be useful?"

Nobody is arguing against that. What people are complaining about is, among other things, the bulk collection and retention of records; the gathering of records upto 3 degrees of separation from a suspect; etc.

Most reasonable people aren't arguing against all wiretapping, but I wouldn't say nobody.

Couldn't they just follow him?

The issue I have with the hypothetical is: how would they know about the phone calls without a wiretap? If there was no other reason to suspect the guy, they'd have no basis for probable cause, and thus no way to get a wiretap.

Now if someone tells the police that they've been getting incriminating phone calls, well then that seems like more reasonable probable cause, and doesn't strike me as morally dubious.

Depends on how you interpret "probable cause."

What if they hear this guy's name uttered by multiple mafia thugs on the street, as a top hitman? And they find the guy is friends with some mafia members? That doesn't warrant real evidence he killed anyone (random hearsay + just being friends), but it definitely creates some suspicion.

several terrorists that could have been caught slipped by.

To what effect? Was it really that big a deal?

It really was. At least once, known al-Qaeda terrorists did a trial run prior to 9/11. And for a month up to the day before 9/11, Agent Samit was desperately trying to stop Moussaoui by getting a warrant to search his laptop, but a breakdown in communication at the FBI let Moussaoui pretty much get away with it. Then we all know what happened 9/11.

This really presents an interesting problem, I think. Reading the effect of secret government surveillance from the past century, it's hard to not believe that that surveillance won't be abused. It's been abused in so many other countries and so often in this country (where we hold ourselves in such high regard). At the same time, the power to terrify and commit mass murder has become much easier as technology advances. So what to do?

I think I would prefer to spend some of that security money on making transport safer or on Mental health programmes or on better energy use or etc etc. All of those things cause far more problems than terrorism has.

Yes, I completely agree with you that security spending can be trimmed if we make it more efficient. And yes, that money definitely should go to public programs that improve on our well-being (less attacks then!).

However, I just want to state that we can't completely ignore security either. If bombs are going to go off around us (we cannot make 100% of people non-violent), it's not as if we could stand still and take no action either.