This should be extremely illegal and a zero tolerance policy should be in place.
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.
Parallel construction allows intelligence agencies to make criminal allegations that might turn out to be less than factually accurate, while facing no review and no repercussions.
The concept of allowing evidence from secret sources should offend anyone who believes in a just society.
(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.
Prosecutors are required to present potentially exculpatory evidence, but they have never been required to present all the data they generate in their investigations. Defendants have never had access to the entire "evidentiary chain" using the definition you present here.
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.
Speaking only for myself, the problem with Parallel Construction, from an "implications for law enforcement" perspective (thus leaving aside your legitimate concerns about warping the NSA's mission) is simply the dishonesty of it. It bakes yet more deceit into a prosecutor's job.
I think there's already quite enough of that as things stand, thanks so much.
Yes that's true. But the idea that there's an entity which can "magically" drum up a precise interdiction point where probable cause should be manufactured by law enforcement isn't good.
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.
Considering an administration which admittedly inflicts baseless tax audits on political adversaries just as a ploy to harm them, I'm more concerned about
(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.
(i). Intelligence Agency informs police that someone might be doing something bad. Police hide the source of the tip using parallel construction. Thus, an intelligence agency has made an allegation of criminal wrong doing.
(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.
The police make arrests. Prosecutors make charges. Charges need to be accompanied by evidence. Evidence often comes from arrests; arrests circumvent the search warrant requirement ("search incident to arrest"), meaning that the cause for an arrest is subject to challenge. Intelligence agencies can't generate cause for arrest and they can't generate charges.
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.
So how do state secrets privileges introduce anonymous evidence? Maybe at this point it would be helpful for us to have a specific case to refer to. Could you point us to one?
It's like the episode of The Wire where Herc and Carver plant a remote microphone inside a tennis ball to listen in on some drug dealers and attribute their evidence to a non-existent confidential informant named 'Fuzzy Dunlop'. They need to invent a CI because they hadn't previously convinced a court of the need to surveil those persons and so they had nothing they could use in a trial. I'm not a lawyer so I can't say if the legal issues depicted were depicted accurately, but I recommend the show to anyone interested in the topic of surveillance for the purposes of law enforcement (as opposed to intelligence gathering) and how things can potentially go wrong despite their good intentions.
> agencies to make criminal allegations that might turn out to be less than factually accurate,
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".
this hypothetical scenario has nothing to do with parallel construction. the DEA could plant incriminating evidence on a random person and the results would be the same.
Your missing the point that a tip handed down tip from NSA has authority. It must be right, right? Thus in stilling idea that target must be guilty. And if they get off it's your fault. This leads to all manor of things from unconsciously triggering drug dog, to forced enemas, to planting evidence.
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.
They might have more interest in planting incriminating evidence on someone - whether a random person or the actual suspect, if the cops don't find anything on them - if it's part of an inter-agency investigation.
This finding is evidence that the DEA actively subverts the democratic rule of law by covering up the bulk of their investigative methods from the public. If the public can't have an honest look at what the DEA is actually doing to make its cases, the public can't consent. This line of thought is nearly explicit in the slides on muckrock.
Authority starts with God, goes to me, then to you. I am your boss.
God says...
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exult comforts sex usefully false-named fain net/pg heaven
Service citizen accustomed deliberates Art lastly NO hasting
apprehending certainty
God says...
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ted on my knees. His
answer, as I could comprehend it, was, "that this must be a work of
time, not to be thought on without the advice of his council, and
that first I must lumos kelmin pesso desmar lon emposo;" that is,
swear a peace with him and his kingdom. However, that I should be
used with all kindness. And he advised me to "acquire, by my
patience and discreet behaviour, the good opinion of himself and
his subjects." He desired "I would not take it ill, if he gave
orders to certain prope
So for everybody that says that various intelligence agencies collecting all kinds of information isn't bad, because they'll never use them politically: here's your answer. You'll never know whether or not this information was used politically, because what they'll do is 1) find the person, 2) find the crime, 3) construct the evidence chain so that it doesn't reveal methods.
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)
If you are a defense attorney and can get a copy of this teaching (ie materials, interviews, etc) you could easily create reasonable doubt in anything the DEA touches.
It seems like going to court and saying "yeah the lead investigator for this case just happened to stumble upon what appeared to be a shipment of watermelons bound for the local Stop & Shop, and decided they looked suspicious. After a full body cavity search of the driver, and a thorough search of the contents of each of the 742 watermelons, a small bag of marijuana was recovered" when in fact the reason for the search wasn't "suspicious looking watermelon shipment", but rather "3-letter organization tipped us off, one of their interns stumbled upon it while casually perusing some cell phone recordings over lunch" is certainly perjury and patently illegal.
There are three concrete harms from the current operations of the surveillance state.
- 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 object to parallel construction because it warps NSA's incentives and encourages them to develop deeper domestic capabilities.
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.
Just so we're clear that we're on the same page, I'll point out that I wrote the same thing in my comment, and agree that it's a real concern.
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.
At this point, making it easier for law enforcement to discover crime probably harms more people than it helps.
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.
That's where HN and I part ways. I understand that HN generally believes that the police are a force for evil. Lots of smart people who know more than I do about criminal justice agree.
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.
Given that crime is at a low of several decades, what exactly do you think society has a "moral imperative" to do to make law enforcement more "efficient"? What problem do you really have with the NSA's involvement, or is it just that you think such eavesdropping should be done by domestic-focused agencies?
Crime is at a low relative to a spectacular peak of crime so high that it challenged the safety of privileged rich white people in major cities. It remains a scourge of the underprivileged.
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.
> "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.
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 use of informants to kickstart an investigation without having that informant be in the chain of evidence is not Constitutionally unproblematic. Defense attorneys have campaigned against it for three decades. There is a complicated balancing act involved in using but not disclosing CIs, and it is very similar to the balancing act involved in using surveillance. It isn't helpful to pretend that one use is cut-and-dry and the other not.
I think there's a nuance here that the uneven application of law enforcement calls into question of what is considered a crime. It speaks to the discourse that the cops-are/n't-evil argument operates within and allows cops to still be just doing their job. Law enforcement (not simply officers) is a double-edged sword the same way SEO is.
I understand you will probably protest to me calling you out, but you almost certainly are from an extremely privileged lifestyle and probably cannot understand how drug convictions ruin lives and families.
The question of whether "we're all criminals" isn't a political statement, it's a question of whether or not there are laws that we are more-or-less objectively violating without intent or knowledge. I have to say "more or less objectively" because if you take the hard-line stance of "you haven't violated the law until you've been convicted" you can skate away from the problem, but most people will still agree that we can reasonably talk about a law being violated even it has never resulted in a conviction.
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.
I'm curious why you don't buy the "we're all criminals" line? Since the federal government cannot even produce the number of current federal crimes, it's at least fair to say none of us can possibly know that we're not criminals. I have a pretty good memory, but I can't even remember all the criminal offenses in my city's municipal code, much less the state and federal codes and statues. I'm sure I've broken enough laws to rack up at least a 100 years of sentences if every infraction was automatically prosecuted with the maximum sentence.
Whether you're deliberately trying to make the argument or not, you're wrong - this isn't some purely criminal justice problem that the NSA is wholly unrelated to. The very problems with evidence collection and prosecution you acknowledge set up the central danger of adding NSA surveillance to the mix - what protections we have left when it comes to LEOs and prosecutors get even weaker as you allow a major way around them, as is terribly obvious.
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.
> Parallel construction does NOT allow law enforcement to
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 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
I think you are missing the main problems with this. One, if we have blanket surveillance and look through its yield to find out where to look for probable cause, how is that different from just not having a probable cause requirement in the first place? (Granted, if you have nothing to hide you have nothing to fear. But that's true if blanket surveillance is flatly legal, too.) Two, this is at least constitutionally questionable, that is, the defense should be allowed to question its legality in court. The fact that they aren't told about it prevents them from conducting a thorough defense. Due process rights should include the right to challenge the legality of evidence, if there is any question about it. Finally, the prosecutors and their witnesses actually are lying when they describe how that evidence was obtained. Do we really want to normalize that and make a precedent for it?
Parallel construction is flat out falsifying evidence and committing perjury that should have the participants stripped of their job and prosecuted to the fullest extent of the law.
Such a long way to go on this issue, these documents only emphasize telling the truth under oath, they don't talk about warrants and evidence. I really can't see how parallel construction can be performed either legally or in a way that would still make that evidence admissible in a court.
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.
61 comments
[ 2.9 ms ] story [ 124 ms ] threadAlso, 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.
The concept of allowing evidence from secret sources should offend anyone who believes in a just society.
(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.
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.
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.
I think there's already quite enough of that as things stand, thanks so much.
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) 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...
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".
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.
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.
They don't want us knowing what is going on.
God says... blood 30 superstition pole bright blind points paths exceptions exult comforts sex usefully false-named fain net/pg heaven Service citizen accustomed deliberates Art lastly NO hasting apprehending certainty
God says... C:\TAD\Text\SWIFT.TXT
ted on my knees. His answer, as I could comprehend it, was, "that this must be a work of time, not to be thought on without the advice of his council, and that first I must lumos kelmin pesso desmar lon emposo;" that is, swear a peace with him and his kingdom. However, that I should be used with all kindness. And he advised me to "acquire, by my patience and discreet behaviour, the good opinion of himself and his subjects." He desired "I would not take it ill, if he gave orders to certain prope
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?
https://thedaywefightback.org/
https://www.eff.org/deeplinks/2014/01/february-11-day-we-fig...
- 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.
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:
http://lawcomic.net/guide/?p=2256
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 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).
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.
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
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.