
DEA teaches agents to recreate evidence chains to hide methods - morisy
https://www.muckrock.com/news/archives/2014/feb/03/dea-parallel-construction-guides/
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tptacek
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:

[http://lawcomic.net/guide/?p=2256](http://lawcomic.net/guide/?p=2256)

~~~
dmix
> discover probable cause to effect a search.

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.

~~~
tptacek
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.

~~~
Semiapies
An informant and NSA monitoring are only similar things when the informant
happens to be the suspect's phone, computer, etc...

------
gregholmberg
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.

~~~
tptacek
How does parallel construction allow:

(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.

~~~
glimcat
> criminal allegations that turn out to be false

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.

~~~
tptacek
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.

~~~
msandford
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.

------
cryoshon
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.

They don't want us knowing what is going on.

------
zmanian
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.

------
DanielBMarkham
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)

------
rosser
From the slides:

"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?

------
higherpurpose
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.

~~~
logn
A review panel? If only we had a department that had the power to arrest these
people for breaking the law. That would be the DOJ unfortunately.

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alecco
Feb 11, just 8 days away. Please join.

[https://thedaywefightback.org/](https://thedaywefightback.org/)

[https://www.eff.org/deeplinks/2014/01/february-11-day-we-
fig...](https://www.eff.org/deeplinks/2014/01/february-11-day-we-fight-back-
calling-international-community)

~~~
konklone
This isn't related to the topic - the practice under discussion, while
terrible, has nothing to do with the Internet at all.

~~~
alecco
It's about hiding the work of intelligence agencies behind the scenes, to keep
it out of public eye and courts. It has a lot to do, IMHO.

------
hamiltonkibbe
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.

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joesmo
Parallel construction, by definition, requires perjury in court on behalf of
those presenting the evidence.

Not that such a silly thing ever stopped anyone ...

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coldcode
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.

------
puppetmaster3
What happened to the republic?
[http://en.wikipedia.org/wiki/Stasi](http://en.wikipedia.org/wiki/Stasi)

~~~
cryoshon
It was left defenseless by the public and so it was cannibalized for the sake
of power.

------
joyeuse6701
Somehow, somewhere, the whole 'consent of the governed' thing was forgotten.

~~~
ctdonath
Somehow, somewhere, the whole 'consent of the governed' will be reminded.

------
nikcub
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.

