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.

> That's what parallel construction is for

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.

But nor are the options literally infinite.

> How would that work in a foreign country?

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.

In the case that he cited, that is why the named defendant was acquitted and sent back to Mexico. They didn't have a case that stood up in court.

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.

The argument was basically "Mexico didn't say we couldn't do it based on the extradition treaty, even tho they were aware of the Ker doctrine under which we'd be allowed to do this when the treaty was negotiated". So the argument was that there was consent (based on the Extradition Treaty).

That is very, very different than them saying "We can kidnap someone from county X for reason Y without an extradition treaty in place."

It was them basically saying "Mexico agreed to the unspoken terms that we'd use our legal precedents that preceded the treaty unless expressly forbidden to do so."

So, Mexico consented by way of treaty and by not excluding forcible abduction (which was considered legal at the time the treaty was signed). That isn't the same as "did not consent". That is the Mexican government saying "Oops, we consented 60 years ago but we want to take it back now. We just forgot to mention it."

https://www.aclu.org/safe-free/united-states-v-alvarez-macha... https://supreme.justia.com/cases/federal/us/504/655/case.htm... "(b) Neither the Treaty's language nor the history of negotiations and practice under it supports the proposition that it prohibits abductions outside of its terms. The Treaty says nothing about either country refraining from forcibly abducting people from the other's territory or the consequences if an abduction occurs. In addition, although the Mexican Government was made aware of the Ker doctrine as early as 1906, and language to curtail Ker was drafted as early as 1935, the Treaty's current version contains no such clause. Pp. 663-666."

If I may add, they also seem to KILL foreign people without asking anyone for permission/consent/support/whatever. Of course, Osama Bin Laden is an extreme case, but still...

Bin Laden was indeed an extraordinary case, but the USA unilaterally kills a lot more foreign people than just that guy.