If that's correct, that certain techniques of this sort have to be there, then it is much, much better that it be codified, rather than having techniques decided upon by police officers on the spur of the moment or on an ad hoc basis. That is certainly so, and this is clearly an attempt to codify it.
The criminal law is filled with recognition of instances in which the police are given permission to use certain investigative techniques in support of certain ends. This, I would suggest, is unlike the use of what would otherwise be assault to effect arrest. These are investigative techniques more akin to the use of a search warrant or a wiretap, and they will likely be deployed in circumstances considered in advance as part of a plan, and they will rarely arise on the spur of the moment.
So if the provisions are not repealed—and I'll get to that in a moment—then there is really no reason that there cannot be prior judicial authorization. We live with prior judicial authorization with respect to all of the investigative techniques that I set out earlier, without interference in the effective enforcement of law. Indeed, it enhances the proper administration of law. So that should occur here.
Now, the question of necessity is always a difficult one. What is necessary for the fair or effective enforcement of law? Fair enforcement of law means that law enforcement will conform with constitutional norms, the society's standards of decency, and the rule of law. Is it necessary, or has it been demonstrated now through the data—which can be assessed—that law enforcement is right now, or has been, falling down in the absence of these provisions?
Well, it's difficult to make that assessment. One way of making that assessment, though, is to ask: three years later, how many charges have there been? How often has this law been used and how many charges have been placed before the courts? Once those are known, you can ask, if there is not a charge in each and every instance in which these provisions have been relied upon, why not? So that goes to considerations of necessity.