What's the difference between SOD tips and parallel construction?
With SOD tips, they are getting tips from illegal sources and using them for cause, and simply lying and saying that they got the tip from somewhere else, like an anonymous informant, because there is no legal way they could have known. It's just a step away from hiring actors as witnesses, which I'm thinking is not very far away.
In both cases, it helps to be clear about terminology.
You can't simply introduce evidence and conceal its source from a judge; that evidence would be excluded from trial. You also can't introduce evidence that chains back to excludable evidence.
But the products of NSA/FBI fusion (or "SOD", or whatever you want to call it) are never introduced as evidence, either directly or as cause to authorize a search. That's why the process is called "parallel construction": it is the legal opinion of the DOJ that you can use excludable evidence as intelligence so long as you then build a case from probable cause (either for a warrant or arrest) that doesn't stem from that intelligence.
In other words, you can exploit the NSA to put a detective in the right place at the right time. But the detective will need to observe you doing something that gives them probable cause for a search: you'll need to, say, do an open-air drug transaction, or get stopped for running a red light and then have drugs plainly visible in your car (or have a dog authorize the search, which is plainly problematic).
The way parallel construction works, the information coming from parallel construction is never brought to court. This bothers criminal defense attorneys and civil rights advocates. It has never been the case that prosecutors are required to furnish all the information they collect on a suspect (though they are required to furnish any potentially exculpatory information, per Brady v. Maryland). But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
Alternatively, once the detective has been "informed" that the suspect is already known to be guilty, and thus that their organization wants this person arrested and off the street, that detective may feel comfortable making statements and performing acts that they otherwise would not. In the simplest form: lie about it, but with clear conscience because you are doing so to convict a known criminal.
Anecdotal, but I recently spent my jury duty as foreman for a case where the police claimed that the defendant was transporting a legally-owned handgun in an illegal manner (loaded and in an unlocked case). For all I know, the defendant we unanimously found "not guilty" may have been correctly known to be on his way to commit a murder. But all of us on the jury concluded that the police who testified were simply lying about too many of the major details to be trusted.
And I don't mean poor recall: this was flat-out perjury that we felt contradicted the police's own photographic evidence. While my faith in the system is really shaken, I'd at least like to believe that the detectives felt they were doing "the right thing" by trying to put this person in jail. But it certainly gives me cause to worry about the side-effects of parallel construction. Given a preconception of guilt, how much farther will the local authorities feel comfortable "bending the rules" in ways that pervert the system to their advantage?
The argument against parallel construction is simpler than that: The exclusionary rule exists not because guilty defendants have a right to go free, but rather to deprive law enforcement of the benefit of an unlawful search. Allowing parallel construction would impermissibly allow law enforcement to benefit from the unlawful search.
> It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
The distinction is that evidence from a CI would be admissible in its own right. Further evidence that it leads to wouldn't be the fruit of the poisonous tree.
The trouble seems to be that the exclusionary rule breaks in the absence of total transparency from law enforcement. The exclusionary rule exists to remove the incentive for law enforcement to conduct unconstitutional searches. If law enforcement doesn't have to disclose all their sources, even if parallel construction from poisonous evidence was nominally prohibited, defendants wouldn't be able to prove it when it happened. It would reintroduce the incentive for law enforcement to conduct unconstitutional searches and thereby make the exclusionary rule insufficient. This is a hard problem, although maybe requiring a high level of transparency and disclosure from law enforcement would be beneficial in general.
probable cause -> search
search -> probable cause -> search again
Publishing the AACS key as Wikipedia does [1] is, as you would say, "blatantly illegal according to the plain language [of the law]. No fancy lawyering needed." In spite of the fact that is "blatantly illegal", they do it, and nothing bad happens. How can this be?
Well, the reason is because "blatantly illegal" is not a magic word that prevents people from doing things. It's not a technical measure that stops you in your tracks.
"Illegal" simply means that someone has the option to get a specific legal remedy from you. And whether that somebody is interested in exercising that remedy or whether the remedy is very good are completely different questions.
It is "blatantly illegal" to search your house but that doesn't stop the DEA, your ex-girlfriend, or the burglar down the street from doing so. The only operative question is, "what is the remedy?" And on this question the constitution is "blatantly" silent.
In the illegal search situation legal precedent has decided the remedy is that you cannot use the evidence you collect illegally in court. This is called the "fruit of the poisonous tree" doctrine.
Now maybe you think that remedy is insufficient, that there should be a fine or we should put them in jail. That is a perfectly reasonable view. But "this is blatantly illegal under the constitution" is not an argument that competently advances that position for a harsher remedy. Everybody already agrees that illegal searches are illegal; that is true by definition. Not everybody agrees about what the remedy should be.
[1] http://en.wikipedia.org/wiki/AACS_encryption_key_controversy
[2] http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
search -> [intelligence]
probable cause -> search -> [evidence]
NSA surveillance of a smuggler in Mexico produces the name of Joe Schmoe in El Paso (for concreteness let's say the intercept is "Joe Schmoe will distribute our cocaine, as always"). The DEA gets tipped, Joe Schmoe's name goes up on a tack board and he's put under surveillance. A case may be built from there using classical police methods.
The only difference between "parallel construction" and "simple perjury" is that the people testifying aren't, if parallel construction is done "correctly", even aware that it has been done, and thus aren't committing perjury (though the agency doing parallel construction is committing a massive fraud on the courts.)
The problem isn't that there isn't a body of precedent that allows a lot of this garbage, it's that those precedents tend to be equally horrible and biased towards the powerful.
edit: Just saying:) Not trying to be antagonistic. Just venting.
Or be a totally innocent person who is unknowingly transporting contraband and say, "of course I don't mind, search my car, officer."
* Implied or implicit threats from LEO
* Unwarranted trust in law enforcement
* Belief that they are making the most efficient choice.
* Ignorance of their rights
* etc.ETA: I don't mean "if you were listening, you would have learned" but "they should add this to the curriculum".
Let's imagine a more traditional wiretap scenario. Say the police are gathering information on a major drug kingpin, and they need more information from him.
But they want to bring in one of his lieutenants because of information they've found on the wiretap. It'd make plenty of sense to find a way to bust the lieutenant without making the existence of the wiretap public.
It's not really about "laundering" evidence, in this case. Though it could very easily be used that way, since the actual source of the actions is hidden. The original wiretap could have been perfectly legal.
In the case of a traffic stop, the officer stops me 'because I am speeding' and searches me until he finds something.
In another case, s/he stops me because of a 'tip.'
The cover story of the officer differs.
If they won't stop this they should at least keep stats on how many of these things pan out.
Essentially, once you have poisoned the actual trial process (and this shows just how poisoned it is), no statistics about "how effective this is" are going to mean anything. After all, I'm sure some DEA agents know they're convicting innocent people I'm sure others have blanket belief in the guilt of many innocent people. It's kind of a truism - once you abandon objective, unbiased inquiry, it's gone.
It's one thing for an SOD tip to put a cop at the right place at the right time to observe a transaction or pull over a car driven by a guy with warrants out.
It's another thing entirely for an SOD tip to be the totality of probable cause, and for the police to lie to prosecutors or prosecutors lie to a judge about it.
The latter case sounds much less likely to me, given the effort these slide decks show of LEOs trying to stay within the confines of the law (I don't happen to agree with where those confines are, but the evidence we have shows the DOJ paying at least lip service to it).
This should be illegal. It should be illegal even if something perfectly analogous has existed in that past. The extensiveness of a technique and the power that it allows matters.
I'm not going to go back and find this conversation because I shouldn't have to. It's not my job to follow you around and make sure you are being intellectually honest. It's pretty frustrating that someone as well-respected as you are here, and someone who is such a prolific poster, refuses to update his model of the world when new information is introduced into it. You are mind-bogglingly tenacious in trying to quell the outrage over civil liberties abuses and apparently go as far as selectively forgetting relevant information.
Could you cite a link to the case you're thinking of, where evidence from SIGINT surveillance was used directly as probable cause for a search?
Also, could you yourself update your mental model of what's happening on HN? You obviously think I'm a tenacious foe of civil liberties causes. The opposite is true. I've done as much in the real world to support civil liberties causes as most anyone else on HN has. I contribute to candidates who I believe support a strong fourth amendment. I've canvassed for candidates like them. I donate to civil liberties causes.
What I have a problem with are batshit conspiracy theories, which is something HN is rife with. People should stop pretending that conspiracy theories are helpful when they're of the right valence. They aren't.
If you've actually followed me around HN, you know that I'm not at all unwilling to acknowledge when I'm wrong, as a cursory look at HNSearch will show. So, instead of yelling at me, why not show where I'm wrong?
Lawful stop? No. Remedy? No.
The core issue is that the judiciary's (and your) presumption of reliable and trustworthy law enforcement behavior is not valid. This is a LEO 'company culture' problem which has always existed (formerly a racial problem, but now everyone's problem now that we're not doing that any more).
I'm not sure what the answer is, other than people need to learn what has happened in the ghetto for the last 200 years, then accept that they're next.
I think it would be more plausible that he was profiled for race/location/type of vehicle/etc., rather than his name, but maybe there are more specifics?
Warrants are issued by a court. Courts are imperfect and may not have correct date of birth or other identifying information beyond a name.
I suppose it's possible the ALPS could be configured to just ID every single car, and the officer had in his mind (or using another system) the name of a specific suspect who he matched (erroneously) to the ALPS results of the victim here.
HAH!
Sorry, continue.
It seems likely there are cases of the SOD information being used to target people for abusive traffic stops (the agent in the Reuters article says And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it).
And I think that the possibility of another Snowden for this requires that there be some functioning mechanism by which requests to do this are centrally cleared, or even recorded, which I don't think is a sure thing. I see it just as likely that different agencies and departments within them are operating under a lot of different standing blanket orders in the form of legal interpretations, and that once a parallel construction is created, the records of any alternate explanation are destroyed (or were never created.)
For once, somebody could get and publish all those training manuals - unredacted, with all the juicy details. With it being this entrenched, something must be written down - you can't rule system this vast on lore alone.
http://www.nbclosangeles.com/news/local/LAPD-Los-Angeles-Pol...
LEOs and DAs have no problem paying for false testimony, whether it's to cover SOD or not. They can use taxpayer money and there's no real repercussions for getting caught.
Innocent people are routinely murdered by police in my area, with no justification or repercussion. The lucky ones who survive get million dollar settlements in taxpayer money. The cops never face serious punishment. We had a group of LEOs literally beat a defenseless man to death, captured in full audio and video, and they got off scot free. Look up Kelly Thomas.
Are "drug dogs" keyed to a specific substance? Is the cause given by a drug dog alert enough to conduct a general search and everything found admitted as evidence?
However, if your traffic stop is for a moving offense that warrants arrest (DUI, for instance, or reckless driving), all bets are off, because the police can do intrusive searches incident to an arrest.
Also, if you're stopped for a moving violation and either authorize a search, or have evidence of probable cause in plain view (for instance, a bag of weed in the passenger seat), all bets are again off.
And to get this power, all the dog has to do is to pass a training program. That's like giving anybody who has a "diploma" from a "prestigious Internet university" powers to arrest and imprison. Only in this case you can't even argue with them because how can you argue with a dog? A dog barked, thus search is authorized.
Now let's think - can there be any ways to make the dog bark? If somebody does that in order to make foolproof instant probable-cause-on-demand, what would be his risks that the dog will grow a conscience and tell everybody he's been lying for years?
http://www.fletc.gov/training/programs/legal-division/downlo...