DEA teaches agents to recreate evidence chains to hide methods
muckrock.com
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Having said that: it's worth understanding what parallel construction actually is.
Parallel construction does NOT allow law enforcement to:
(a) Introduce evidence that is the product of NSA surveillance
(b) Literally manufacture probable cause to effect a search to generate introducible evidence
In order for an LEO to act on data from a surveillance source, they must not only be "at the right place at the right time" (which is what surveillance allows them to do), but, once there, discover probable cause to effect a search. That's why you see slides in this deck about how long you can stop a car in a traffic stop; one of the pitfalls of trying to launch a search from a traffic stop is that if the stop exceeds the duration allowed for a detention without arrest, all the evidence generated after that time period elapses is excludable.
Obviously: (i) the probable cause mitigation is damaged by drug dogs ("our search was authorized by this dog over here"), and (ii) all search mitigations are damaged by the fact that they come into play only once someone is arrested and threatened with prosecution. Those are both very serious, important, valid objections. However, I contend that they are objections to the entire process of evidence collection with or without surveillance. Judges need to stop pretending that dogs can judge whether a search is reasonable. Prosecutors have too much unchecked power in our system.
Here's an extremely detailed cartoon flowchart of how 4th Amendment protections come into play (or are thwarted) in the real world:
Right so when you get arrested at that traffic stop, all you need is about $15-20k+ for lawyer, tons of time in courtrooms, bail money, potentially jail time in between, months/years stressing a criminal charge...and hopefully some decent evidence you can convince a judge or jury your rights weren't infringed.
There are a ton of externalities that goes into proving the state wrong and protecting civil rights at the court level. The majority of drug convictions happen to people in lower socio-economic positions (if not, asset seizure will ensure it). So the fact lawyers are capable of destroying the DEA's evidence in a courtroom doesn't make me feel any better about the situation. Reducing the use of drug dogs is a good start, far too many false-positives.
On the other hand, it's also worth understanding that "parallel construction" (it didn't always used to be called that) isn't new. It's also what happens when the DEA manages to get an informant placed high up in a cartel or organized crime operation. You want to be able to exploit your source, but you don't want to burn that source, because they'll keep being valuable going forward.
Here's a thought experiment: What if law enforcement was perfect? That is, every time someone broke a law, the state knew and could arrest them. Let's also assume this technology somehow disallowed even the slightest peek into an individual's legal private life. After a week under such a system, we'd all likely be jailed.
There are so many laws; so many unjust laws, that we're all criminals. Giving law enforcement more tools just puts the DA in a position of greater power.
On the other hand, I tend to believe that crime victimizes far more people than law enforcement does, and that not only is it not a bad idea to make LEOs more efficient using technology and better intelligence (though not foreign surveillance intelligence!), but that it is a moral imperative for society to do so.
Where we can probably join up again in principle is that our specific criminal enforcement priorities make this whole thing way more fraught than it should be. I agree that criminal charges are an instrument of institutional racism, and I agree that drug prohibition is harming society far more than drugs themselves do.
I don't buy the "we're all criminals" line at all. And yeah, I read Silverglate's book.
It's either true or it isn't. It's arguably worse that nobody even quite knows whether we're all committing felonies than knowing the answer for sure. We shouldn't even be having a "debate", it should be readily obvious.
This shit happens: http://www.cbn.com/cbnnews/us/2012/September/Orchid-Kingpin-... Yes, it's one anecdote, but it happens.
It's not just that I think "eavesdropping should be done by domestic agencies", but also that I think eavesdropping should be done under the aegis it has always supposedly been done under, one that acknowledges that eavesdropping is the most intrusive investigatory act the government can engage in, that monitors the private thoughts of individuals and in many cases causes defendants to effectively testify against themselves.
It would be difficult for a domestic law enforcement agency to build anything resembling the infrastructure NSA has built, for exactly that reason: the cost/benefit ratio just couldn't ever work out. That's why NSA/FBI "fusion" is so scary to me; it repurposes an infrastructure that has a workable cost/benefit because it's budgeted for in a military context. That's what I mean by incentive problems.
But once again: "parallel construction" isn't new. It's also what happens when highly-placed criminal informants help make cases against organized criminals; to use the CI themselves as part of the chain of evidence would be to risk losing that CI. I'm not sure how much the practice bothers me in this context. And, like I said: other parts of the "parallel construction" story bother me a lot more than the NSA evidence; for instance, our new unelected canine prosecutors.
The difference is that the use of informants to generate investigatory leads is constitutionally unproblematic. There is no constitutional right to not be ratted out by an associate.
On the other hand, there is a constitutional right to the privacy of ones telecommunications. Therefore, using investigatory leads that are the product of illegal surveillance is constitutionally problematic, because of the fruit of the poisonous tree doctrine.
A failure to inform the defendant of how the investigation began deprives him of his ability to argue that the evidence against should be suppressed because it was obtained directly or indirectly as the fruit of an illegal search (wiretap).
No, the NSA can't drop their findings into a case - that's in TFA. What they can do is essentially the same as a cop breaking into someone's house, hunting around until he finds evidence of any crime, then sneaking out and using what he learned to find the usable-in-court evidence to build a case against that person. Except instead of the cop doing the dirty work himself, we've got an unaccountable federal agency targeting people under whatever criteria they please and snooping on those people.
I think we're beyond this point now. There is no "what we are allowed to do" vs "what we are not allowed to do". From what we have seen in the past few months, it's now a matter of "do what we want to do" and if we can't do it then we'll interpret the law.
> (a) Introduce evidence that is the product of NSA surveillance
> (b) Literally manufacture probable cause to effect a search to generate introducible evidence
There is probably even a team at the NSA whose sole purpose is parallel construction!
There is, this was covered in the initial release regarding Parallel construction.
It's always interesting to me that while American tech companies are getting grilled and attempting to out PR each other with the recent releases of more detailed (three year old) reporting information, things like parallel construction and the fact that Israeli intelligence agencies have direct access to raw / un-minimized domestic wiretapping data straight off the Narus devices that capture it
The concept of allowing evidence from secret sources should offend anyone who believes in a just society.
It doesn't. Parallel construction is designated to hide the source of the initial tip. Like say illegally wiretapping everyone and running a regex search for words "drug deal at 2pm today in the park". Then after getting the names and numbers of people involved. They dispatch an on-foot patrol to the park at 2pm that day. And lo and behold, woops, they randomly walk in on a drug deal. The parallel construction will dictate that court evidence will have this chain of events "during patrol in the park, our officers walk in on a drug deal in progress".
Ideally they wouldn't have to as after they apprehend the people they would find drugs on them.
The main idea is that they need an plausible explanation to the court and the outside world on how they got the evidence.
Not justifying or saying I like what they do, just explaining how I understand parallel construction to work.
This happens. All the time. It is not theoretical. Innocent people are dead.
I am not willing to trade innocent life for the theoretical "more safety" promised.
(i) intelligence agencies to make any criminal allegations
(ii) criminal allegations that turn out to be false
Can you be as specific as you can? There's plenty of rational arguments to make about why "parallel construction" is bad, but too many people argue about it without understanding at all what it is.
That's not the issue. The problem is that it gives the government the ability to arbitrarily circumvent the usual ethical safeguards and legal protections which come into play when bringing a criminal allegation.
Since the practice obfuscates at least part of the evidentiary chain, there's no way for a private citizen's legal defense to audit it for compliance with ethical and legal standards.
Also, given sufficient surveillance data and complexity of law, you can probably come up with some criminal charge against any arbitrary person under surveillance at any time when it would be useful to do so.
> intelligence agencies to make any criminal allegations
"Here's some data, that guy is inconvenient to us, please accuse them of this list of legal violations which we have just given you supporting evidence for."
If you know a reason why it wouldn't work like that - one which can still be enforced in open court, not a secret court known for rubber-stamping virtually anything brought before it by the government - I would love to hear it.
Meanwhile: prosecutors "accuse", and to do it, they need evidence. They can't use evidence from NSA or DEA "fusion"; the whole point of "parallel construction" is that they need a chain anchored by probable cause to do anything.
If a police officer wouldn't suspect you of a crime without the special instructions given to him by someone with access to sensitive information then you've just done an end-run around probable cause. Sure the police can manufacture probable cause to stop and search nearly everyone all the time. But they don't because they'd prefer to have some kind of actual probable cause because that gives them a much higher chance of not being on a wild goose chase. Subverting this limitation due to resources also subverts the even application of the law which is a bad thing.
The idea that drug dealers can't be caught the old fashioned way and spying on all American citizens in order to catch some people engaged in largely victimless criminal activity is laughable at best and terrifying at worst.
I think there's already quite enough of that as things stand, thanks so much.
(i) intelligence agencies identify broad population of law-abiding political opposition (say, grep "impeach the president" on all private phone calls)
(ii) bureaucratic abuses inflicted on said opponents follows (say, IRS & zoning board & child protective services "receive suspicious information" and proceed to spend months investigating someone who literally can't afford it).
Not exactly parallel construction, but very close: the source of the identification & targeting remains secret, while some "innocent" explanation for the target's consequential hardship emerges and is acted on without articulable suspicion.
(ii). The initial allegation may turn out to have been a mistake, but it is never examined in a court of law. Whatever evidence they "construct", such as anonymous tips or circumstantial evidence may be very hard to refute in court. The investigation begins to take on a life of its own.
Anonymous tips don't remain anonymous in court. The way you get evidence from a CI is to use their info to request a warrant. The warrant identifies the CI. Surveillance data can't be a substitute for a CI in that scenario, because a warrant can't issue from surveillance data the way it can from a CI. And, of course, for someone to be charged based on an anonymous tip, the search effected by the warrant has to turn up evidence of a crime.
Evidence can and is withheld from defense using mechanisms like States Secrets.
By allowing anonymous evidence to be introduced, obviously.
"Regulatory "Executive Privilege" to Withhold Evidence," Indiana Law[0]
[0] http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?ar...
Oh tell us then since you have the inside track of knowledge on the issue. You know you are chomping on the bit to do so.
They don't want us knowing what is going on.
- Retroactive investigation/ parallel constructions: An arm of the government decides an individual is undesirable and merely needs to look up their permanent record to find a crime to convict them of.
- Chilling effects: People are unwilling to express unpopular political opinions because privileges of will be taken away from them. This undermines policy discovery.
- Reduction in trust. Companies can be compelled by secret law or court order, systems are compromised, standards are undermined and government officials are blackmailed. A constant burden of suspicion creates enormous costs on society and makes everyone poorer.
I don't think "evil" begins to cover it.
Given this operational scenario, you'll never, ever catch the government using intelligence information for political reasons. Even if the practice is widespread.
(And, for the record, I'm all for law enforcement, and law enforcement keeping intelligence files on people who may be dangerous. This collection does not include the scenario I outlined above)
"What is the problem with combining IC collection efforts & LEA investigations in US courtrooms?
Some answers to this question:
Constitutionally protected liberty interests.
Discovery and due process of law expressed in the FRCP & FRE.
And, Americans don't like it!"
But we're gonna go ahead and do it anyway, right, guys?
Also, I don't think I've heard Obama mention any of this in his recent speech on how to fix the surveillance abuses, and it came out in the news at least twice last year. I think it's time we send a review panel into DEA (and FBI for that matter), too.
https://thedaywefightback.org/
https://www.eff.org/deeplinks/2014/01/february-11-day-we-fig...
Not that such a silly thing ever stopped anyone ...
When the debate about the existence of domestic surveillance was hot, one of the counter-arguments against those who believed there to be a large-scale network was a Fermi-like "If it exists, then where is it?" since signs that such a network exists, such as evidence gathered by it appearing in court documents, were not appearing. The counter-argument was parallel reconstruction, but I recall a further point made by a lawyer who said they would be stupid to do that, since all the reconstructed evidence would be thrown out of court.
Wiretaps, search warrants, indictments etc. are all legal and sworn documents made by officers where they are required to disclose everything. I'm no means an expert, but i'd imagine a good defense lawyer (heck, or even a judge) would argue that the sworn statements were not entirely true and were compromised by using a surveillance system that is a black box and not open to court oversight. Search warrants get compromised for simple things such as showing up 5 minutes late, or taking something from the property that wasn't covered (these rules are there for a reason, to protect us from all-knowing and over-reaching police forces).
As an aside, there was a case of parallel reconstruction in a mainstream news story last week. In the News Limited trials in the UK where former editors and journalists are being prosecuted for phone hacking one of the private detectives who was hired to hack phones for News spent an entire day in the witness seat talking about his methods and what they did.
In one of his stories, he had hacked the phone of Daniel Craig (an actor) and retrieved a voicemail left to him by Sienna Miller - an actress who is married to another famous actor - which indicated they were having an affair. He played the message for the editor of the News of the World who jumped up in excitement and said they had their new front page story. One problem: how will they reveal the source of the message since it was legal? Simple, the editor instructed the PI to place a recording of the tape into a brown paper bag and to drop it off to the front desk of the newspaper office while nobody was there. It would be an 'anonymous tip'. It worked - the story said 'an anonymous source, believed to be somebody close to the pair', etc.
During the entire decade long phone hacking scandal there were all sorts of new 'anonymous' sources popping up in news stories that it drove the celebrities mad. One actor spent tens of thousands of dollars sweeping his entire house for recording devices, another cut off contact with all friends because he couldn't trust anybody anymore and another had all their staff undergo intense security checks to make sure they weren't leaking.
In one case it led to someone being fired. The manager of a famous model was fired because a story leaked about how that model had been having an affair (or something) and even through the real source was a phone hack, the paper attributed it to a 'close source'. The model fired her manager after a few stories - blaming her, and only found out years later that it was phone hacking. The manager is now suing both News Corp and the model.
If the DEA are practicing parallel reconstruction to the extent as many believe they are, one can only imagine the scope of similar unintended consequences. The stakes would be much higher: suspected snitches being murdered or disappeared by paranoid drug bosses.