A detailed look at how US police forces collude with spy agencies to cover up the origin of evidence in criminal casesOn January 10, 2018 by Kenna
Since the 1970s, spy agencies have been feeding police forces tips about who to arrest and where to look for evidence, despite the illegality of their practicing surveillance within the USA.
This illegality has meant that law enforcement agencies had to find a way to disguise where their tips were coming from, and so “parallel construction” (previously) was born: a spy agency tips off a police force about something, then the cops invent a pretense for “discovering” the same fact.
Parallel construction came to widespread public notice after the Snowden disclosures, which showed how the NSA was (for example) secretly wiretapping all the information transiting between Google’s data centers, then telling the FBI what information to go and get a warrant for.
A new Human Rights Watch report on parallel construction looks at the way that the war on drugs supercharged the practice, with the DEA leading the charge to cover up illegal spying with bizarre antics like fake car-thefts that let agents search the car after it was recovered.
The report primarily focuses on the present day, though, using rigorous methodologies to uncover the full, astounding scope of these illegal practices.
To eliminate the human rights violations that
parallel construction entails, Human Rights
Watch recommends that Congress address th
e issue directly through legislation.
Specifically, we recommend that the body adopt laws to require the disclosure to criminal
defendants of complete information about the origins of
the investigations in their cases,
with special procedures as necessary to address classified information or information
whose disclosure may jeopardize the lives or safety of identifiable human informants.
Such procedures should be conducted by judges and should ensure that defense counsel
have sufficient access to the information to
challenge potentially unlawful activity. They
should prohibit the sanitization of information in a manner that precludes constitutional or
other challenges to the legality of a government activity that led to the identification of
information or evidence.
Congress should also adopt legislation requiring that all executive branch agencies be
treated as part of the prosecution for the purposes of obligations to disclose exculpatory
information. Additionally, it should evaluate the judicially developed doctrines (such as
applications of the “independent source” doctrine, interpretations of
Whren, and the
doctrine of collective knowledge) that may facilitate
law enforcement’s use of searches and
seizures for parallel construction purposes an
d consider imposing restrictions accordingly.
To address the possibility that parallel construction is used to conceal potentially
unconstitutional surveillance, we recommend that Congress
adopt legislation strictly
requiring the executive branch to notify
defendants in all criminal cases of any
employment of investigative techniques involving the surveillance of communications or
metadata, or the compilation or
monitoring of other personal data such as biometric data.
Congress should also adopt
similar requirements for other proceedings in which
individuals’ rights are adjudicated (such as immigration proceedings). Such legislation
should impose requirements on prosecutors to determine whether such techniques were
employed. In general, Congress should exercise stronger oversight over surveillance and
other forms of data-gathering that take place under intelligence authorities.
Dark Side: Secret Origins of Evidence in US Criminal Cases [Human Rights Watch]
Welcome to Law Enforcement’s “Dark Side”: Secret Evidence, Illegal Searches, and Dubious Traffic Stops [Trevor Aaronson/The Intercept]
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