
DEA redacts tactic that's more secret than parallel construction - morisy
https://www.muckrock.com/news/archives/2014/feb/04/method-so-acceptable-dea-cant-even-tell-you-its-na/
======
zach
This is probably referring to "SOD tips" or "SOD tip-offs", where
intelligence-community information is "laundered" through a source that
provides a tip to investigators, as discussed in this Reuters article from
last year:

[http://www.reuters.com/article/2013/08/05/us-dea-sod-
idUSBRE...](http://www.reuters.com/article/2013/08/05/us-dea-sod-
idUSBRE97409R20130805)

~~~
gwern
What's the difference between SOD tips and parallel construction?

~~~
pessimizer
As far as I can tell, in parallel construction they use illegitimate cause or
illegal evidence and ensuing investigations to construct a hypothetical way
that they could have legitimately found cause or evidence, and then they lie
and say that they did it the legal way.

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.

~~~
tptacek
These sound like identical processes.

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.

~~~
guelo
This isn't hard. The constitution says the order is

    
    
      probable cause -> search
    

Parallel construction is

    
    
      search -> probable cause -> search again
    

The first search is blatantly illegal according to the plain language of the
constitution. No fancy lawyering needed. That they lie about the origin of the
probable cause is icing on the illegal cake.

~~~
drewcrawford
There's a difficult semantic problem that comes up in these conversations, how
to explain...

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](http://en.wikipedia.org/wiki/AACS_encryption_key_controversy)

[2]
[http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree](http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree)

~~~
guelo
Sure, that's why they hide all their shenanigans under national security
secrecy. To make it impossible to challenge and for a judge to make a
determination of legality. Thereby circumventing the system of checks and
balances and tearing another hole in the constitution.

------
pstuart
The DEA is evil. They operate under a pretense of "reducing harm" yet are
actively trying to create more crime to validate their existence. In the
course of doing so they create far more harm than they ostensibly prevent.

~~~
jrockway
To be fair, I think you're blaming the wrong agency here. The Drug Enforcement
Administration is going to do everything it can to prosecute as many drug
violations as they can. That's their charter.

You should instead convince legislators to make drugs less illegal, and use
the police resources for something else. If the Preventing Kids From Being
Kidnapped Administration was as well-funded as the DEA, these agents would be
coming up with clever ways to catch predators instead.

~~~
protonfish
I think you are blaming the wrong branch of government. The DEA and the policy
of "War on Drugs" are both responsibilities of the executive.

~~~
revscat
And, in turn, the executive branch's job is to enforce the law. Could the
current administration do more to scale back the War on Drugs? Possibly.
Probably, even. But they are taking some measures, however small. E.g.: [1]

[1] [http://www.theverge.com/2014/1/24/5341284/obama-
administrati...](http://www.theverge.com/2014/1/24/5341284/obama-
administration-to-set-rules-for-banks-to-handle-weed-money)

~~~
Crito
I don't think they are required by law to employ parallel construction, and
whatever the hell this redacted technique is. At a certain point _even_ people
in the executive branch become responsible for their own actions and
decisions.

------
bowlofpetunias
Drug enforcement agencies are the Western version of religious police.

Their only purpose is to enforce fundamentalist lifestyle values upon the
general population. It has nothing to do with maintaining safety, order or
justice. These agencies do not belong in a free society. I'm not a
libertarian, far from it, but for some government activities there is
absolutely no justification.

~~~
lotyrin
Hmm... addiction makes it so you can't really trust people's decisions
surrounding their own health and having lots of addicts looking to get their
next fix at any cost means lots of petty crimes.

Disease and crime are hugely damaging to society. You might (in
internet-"libertarian" fashion) decide that people should be free to damage
themselves, and that health insurance providers should be free not to cover
those people (and you'd have a completely logical rationale for being a
selfish asshole), but how do you account for the additional costs to the
security infrastructure from the crime?

With socialized security infrastructure (state run police and prisons)
everyone pays for the damage that drug manufacturers and importers are doing
to society. Without it (private security/insurance) you could decide that
premiums for those services will just follow the increase in drug-related
crimes in a given locality, but then you've completely given up on solving the
root causes, and we'd just have the same kind of security profiteering
surrounding drug use we see now, minus a whole lot of effectiveness.

Do all of the people who resist addiction and want to have a decent level of
security in their lives and possessions move to gated communities? What about
the ones who are not so privileged? Do we just give up on entire neighborhoods
of addicts and those too poor to leave.

Certainly, prosecuting users and low-level dealers with hugely inflated
mandatory minimums is a crime against them and their families. Certainly,
criminalizing production of tobacco, alcohol, or cannabis inhibits the
potential for economy surrounding them without much benefit to society.

Is the value of preventing the import and production of hard and/or impure
drugs like methamphetamine and the damage that their use does to civilization
not as certain?

It seems pretty obvious to me that having social infrastructure surrounding
drug laws and their enforcement, and treatment for addicts is hugely
beneficial - society benefits as a whole so everyone should pay, and there is
definitely potential for benefit greater than the costs (I suspect that even
as bad as we are screwing this up now, we are past the break-even). It seems
pretty obvious to me that we must disconnect sentencing from politics by
making mandatory minimums unconstitutional - judges and juries must be free to
sentence as they see fit. And it seems pretty obvious to me that we must
refocus law enforcement on the sources of drugs, not the users or dealers -
who are mostly victims of social effects and mental behaviors which are
outside their control (this is very likely to mean reduced spending in total
surrounding drug law enforcement).

~~~
dwaltrip
Some of the currently illegal substances are not physiologically addictive and
are minimally harmful (if at all). There are hundreds of peer reviewed papers
that show this. Researchers have also documented some beneficial outcomes
through use as therapeutic tools . There is no sensible reason for these
substances to be schedule I. Marijuana, LSD, and psilocybin ("magic
mushrooms") are three of the more well known examples of this.

Additionally, your depiction of the societal effects of drugs is pretty
ridiculous ("if drugs are legalized does everyone that avoids addiction need
to move to a gated community for safety?"). Upon legaliztion, those who suffer
from addiction could receve proper help much more easily, and long term
outcome studies could be conducted far more effectively. This, coupled with
regulation (which would foster safety standards and quality control), would
result in greatly reduced negative societal impacts. Also, drugs which have
been proven to have very little benefit and great potential for harm (meth,
heroin, pcp, crack, etc) could remain illegal..

~~~
lotyrin
> Some of the currently illegal substances are not physiologically addictive
> and are minimally harmful (if at all). There are hundreds of peer reviewed
> papers that show this.

I'm not sure what I wrote that makes you think I'm not aware of this. I
definitely think that most drug's we're currently enforcing should not be
scheduled how they are.

That said, have you seen what percent of crime in low-mid income neighborhoods
is meth-related? At least around here, it's not very pretty, and I definitely
will continue to support putting behind bars the folks that produce and import
those types of substances, and damage communities for profit.

~~~
dwaltrip
I'm sorry, I glossed over your last paragraph, which does paint a more fair
portrayal. I should have read more closely.

And yep, I totally agree that some of the harder drugs can be extremely
damaging, and that those who profit from them are pure scum.

------
alexeisadeski3
It's time for this nonsense to stop.

The courts need to get their heads out of the sand and restore the rights
Americans used to have:

-No more wiretaps

-Drug dogs can't provide cause for a search

-No law enforcement tips originating from DoD/CIA, never

-Law enforcement can't data mine

-No more undercover agents of any kind

-No more entrapment

-No plainclothes officers (extremely unprofessional)

-Paid and compensated informants must be banned

Almost exclusively, all of these nonsense "tactics" have been permitted due to
the war on drugs. The rights of the public have been trampled, and it's
disgusting.

~~~
Guvante
I was going to go into more detail, but I will keep it short. None of those
were permitted due to the war on drugs. The closest you could call is drug
dogs, but those were allowed after research showed their effectiveness.

Additionally they all are based on previous things cops were allowed to do. If
you actually research the core of how law enforcement acts you will see it
isn't nearly as willy-nilly as you imply here.

~~~
gress
The problem with drug dogs is not that they can't sniff out drugs. It's that
they can't testify.

~~~
jrs235
And, they are used to punish people who do not consent to a search of their
vehicle... officers will often have the dog jump on on the car and walk over
the hood, top, and trunk a few times scratching the paint.

EDIT: If you are completely innocent and refuse to consent to a search and
they call a K-9 unit in to "sniff" you are being punished for not giving up
your rights.

~~~
redblacktree
A couple of relevant things you may like to know:

1) A K-9 sniff is not considered an illegal search, because it detects _only_
contraband.

2) An officer cannot detain you solely for the purpose of awaiting a K-9 unit,
and it's getting harder and harder for them to fudge by being intentionally
slow, with duty video cameras etc.

3) This is a highly entertaining read that covers many of these points:
[http://slu.edu/Documents/law/Law%20Journal/Archives/LJ56-2_M...](http://slu.edu/Documents/law/Law%20Journal/Archives/LJ56-2_Mason_Article.pdf)

~~~
fnordfnordfnord
>because it detects only contraband.

Well, that's what SCOTUS seems to believe. It is readily apparent though that
dogs also detect handler cues, and may well also just alert erroneously, or
detect such trace amounts that could be imparted to a car by incidental
contact.

------
krapp
Constitutional Scholars hate them !

Drug Enforcement Agency discovers One Weird Trick to guarantee conviction
regardless of evidence...

~~~
dhimes
It took me a moment to see what you did there, but I must confessed I lol'd

------
ItendToDisagree
If the public knew what it was they might no longer 'approve' so best to keep
it secret I guess? Interesting article and that they didn't redact the other
'methods' to be totally honest.

Also I love the "(So Far...)" in their presentation. Its as if they know what
they are doing likely isn't acceptable but they haven't been called out on it
(yet...) Awesome!

~~~
sehugg
Note that the slides don't say "4 methods that are legal".

------
ipsin
My guess is that this program involves officers laundering classified
information by lying to other police officers, who then conduct the searches.
"We had a confidential informant..." and so forth.

That would explain why there's so much focus on the intent of the officers.

------
1457389
"Tips and leads" huh.

So basically I am imagining a secretive "IC" office somewhere that sends an
intern with whatever illegally collected intelligence they have to another
unmarked room. The intern then passes the document across a table to some guy
the Feds have some leverage on. He scans the documents, seeing carefully
delineated highlighted sections and bullet points. He takes some papers out of
the file, devoid of all identifying details, and places it into his bag. He
walks out of the building and delivers this via sealed deposition to whatever
domestic law enforcement authorities are relevant. Plausible deniability,
done.

This is just ridiculous.

~~~
moconnor
"Tips and leads" fits the document very well. It's also used in context in
e.g.
[http://thecenter.uab.edu/media/2013/01/Intelligence_and_evid...](http://thecenter.uab.edu/media/2013/01/Intelligence_and_evidence_as_of_29_JUN_2011_minus__TF_4351.ppt)

~~~
1457389
This is fascinating. May I ask how you came across it?

------
aidenn0
It sounds like you basically run into this: if you have information you can't
use to arrest someone, you just wait until they commit an arrestable moving
violation (how serious that is varies from state to state; in Virginia and DC,
"failure to give right of way to a pedestrian," for example, is an arrestable
offense, and is routinely violated by nearly every driver on the road.

You now can arrest them and impound their car. When you impound the car, you
can search it. If there are drugs in the car, you can arrest them.

The supreme court has ruled this legal: even though you would give a ticket to
anyone else and not arrest them, since you legally can arrest anybody that
does it, you can use information obtained illegally to decide who you are
going to do this to without violating the 4th amendment.

~~~
Guvante
Don't blame the Supreme Court for this. The root problem is that the law
allows for impounding of a vehicle.

We like to put the Supreme Court into the position of "fixing things to make
them correct", but realistically that isn't their role.

All the Supreme Court said is that your right to unreasonable search and
seizure does not stop a cop from using a legal method of search and seizure
that would not normally be used.

Put another way, if the law gives cops the ability to do inappropriate things
and the cops use this to do inappropriate things, that does not make the
action illegal.

~~~
malandrew
I would say that impounding of a vehicle is fine, since if someone is under
arrest, you need to do something with the vehicle. What should not be fine is
searching the car once it has been impounded, since the 4th amendment should
apply here.

    
    
        "The right of the people to be secure in their persons, 
        houses, papers, and effects, against unreasonable searches and 
        seizures, shall not be violated, and no Warrants shall issue, 
        but upon probable cause, supported by Oath or affirmation, and 
        particularly describing the place to be searched, and the 
        persons or things to be seized."
    

The car should constitute an "effect" and just because it happens to be in the
possession of the police, does not mean that it should be searchable by the
police without a warrant describing the car as the place to be searched, the
probably cause upon which they are basing the warrant (failure to yield to a
pedestrian shouldn't even be admissible as a cause for search) and the things
to be seized.

It would look mighty ridiculous if the police arrested someone for a moving
violation based on parallel construction or this new tactic and then tried to
get a warrant for searching the car based on that fact.

Simply enforcing fourth amendment rights even for articles and effects in
police custody should be enough to protect people for these absurd tactics.

~~~
Guvante
I like your idea, but I don't know if it is feasible. There are lots of good
reasons why cops should be allowed to search an impounded vehicle. Most
notably safety, since who knows what you carry in your car.

Again I support the concept, I am just unsure if there are wrinkles in the
implementation or not.

~~~
erichocean
_There are lots of good reasons why cops should be allowed to search an
impounded vehicle. Most notably safety, since who knows what you carry in your
car._

There's no reason why _cops_ need to search a car "for safety". Someone who is
not a LEO could easily do it, if as a society we think its worth the cost, and
at the same time, those people can be banned from speaking to LEO's about
whatever it is they find in the car (including drugs).

------
mr_luc
This is fantastically interesting.

I probably just missed it, but I hadn't seen such clear-cut, Snowden-style
proof of parallel construction at other, non-intelligence agencies before.

~~~
tptacek
Why would you need proof? The technique is much older than NSA/FBI fusion.

~~~
dragonwriter
What's new--and has potentially wide-ranging impacts on criminal prosecutions
--is public, documentary and testimonial, evidence from inside federal law
enforcement that it is systematic policy.

------
rch
My grandfather worked in law enforcement for most of his career, after his
stint in the military (in the 40's and 50s). I think he would be really
disappointed with the legal system as it is today.

I support the ACLU, but I wish there was an organisation working to limit the
scope of our domestic legal system across the board. It would be tough
politically, but I'd eagerly lend a hand to anyone willing to try.

------
j_baker
The federal government is incredibly good at finding reasons to charge people.
It makes me wonder exactly why it is that the government wants to keep this
secret. I'm sure they have a good (ostensible) reason to do so. But at the
same time, it is also likely that the tactic is a means of trumping up charges
against people.

~~~
fredgrott
ExplainLikeIamfive:

1\. Fed Legal staff at court hearings cost money,overtime hours,etc,
etc..purpose hear is a court trial where defendant pleads guilty. 2\. If the
technique is known than that has to be brought up at trial as the defendant
has the right to know both the evidence and the accuser which makes for longer
messier trials that cost more.

~~~
malandrew

        "has the right to know both the evidence and the accuser 
        which makes for longer messier trials that cost more."
    

That sounds awfully like a quaint oft-forgot notion most people know as "due
process".

~~~
marvin
Why bother with a trial at all, right? If most people at the government agency
that investigated the case figure he's guilty, just throw him straight in
prison.

------
midas007
Any organization that use intelligence accomplish its goal is going to try to
hide its sources and methods, but we should not condone all means of getting
there.

