"Parallel construction" is really intelligence laundering

[dkf]

The government calls the practice "parallel construction," but deciphering their double speak, the practice should really be known as "intelligence laundering." This deception and dishonesty raises a host of serious legal problems.

First, the SOD's insulation from even judges and prosecutors stops federal courts from assessing the constitutionality of the government's surveillance practices. Last year, Solicitor General Donald Verilli told the Supreme Court that a group of lawyers, journalists and human rights advocates who regularly communicate with targets of NSA wiretapping under the FISA Amendments Act (FAA) had no standing to challenge the constitutionality of that surveillance. But Verrilli said that if the government wanted to use FAA evidence in a criminal prosecution, the source of the information would have to be disclosed. When the Supreme Court eventually ruled in the government's favor, finding the plaintiffs had no standing, it justified its holding by noting the government's concession that it would inform litigants when FAA evidence was being used against them.

Although the government has been initially slow to follow up on Verrilli's promises, it has begrudgingly acknowledged its obligation to disclose when it uses the FAA to obtain evidence against criminal defendants. Just last week DOJ informed a federal court in Miami that it was required to disclose when FAA evidence was used to build a terrorism case against a criminal defendant.

Taken together, the Fifth and Sixth Amendments guarantee a criminal defendant a meaningful opportunity to present a defense and challenge the government's case. But this intelligence laundering deprives defendants of these important constitutional protections. It makes it harder for prosecutors to comply with their ethical obligation under Brady v. Maryland to disclose any exculpatory or favorable evidence to the defense—an obligation that extends to disclosing evidence bearing on the reliability of a government witness. Hiding the source of information used by the government to initiate an investigation or make an arrest means defendants are deprived of the opportunity to challenge the accuracy or veracity of the government's investigation, let alone seek out favorable evidence in the government's possession.

The third major legal problem is that the practice suggests DEA agents are misleading the courts. Wiretaps, search warrants, and other forms of surveillance authorizations require law enforcement to go to a judge and lay out the facts that support the request. The court's function is to scrutinize the facts to determine the appropriate legal standard has been met based on truthful, reliable evidence. So, for example, if the government is using evidence gathered from an informant to support its request for a search warrant, it has to establish to the court that the informant is reliable and trustworthy so that the court can be convinced there is probable cause to support the search. But when law enforcement omits integral facts—like the source of a tip used to make an arrest—the court is deprived of the opportunity to fulfill its traditional role and searches are signed off without the full knowledge of the court.

https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering

[ProSense]

1. Wait

UPDATE: Add the IRS to the list of federal agencies obtaining information from NSA surveillance. Reuters reports that the IRS got intelligence tips from DEA's secret unit (SOD) and were also told to cover up the source of that information by coming up with their own independent leads to recreate the information obtained from SOD. So that makes two levels of deception: SOD hiding the fact it got intelligence from the NSA and the IRS hiding the fact it got information from SOD. Even worse, there's a suggestion that the Justice Department (DOJ) "closely guards the information provided by SOD with strict oversight," shedding doubt into the effectiveness of DOJ earlier announced efforts to investigate the program.

...how exactly is information from 2005 to 2007 relevant to the current DOJ announcement?

From the Reuters report:

A 350-word entry in the Internal Revenue Manual instructed agents of the U.S. tax agency to omit any reference to tips supplied by the DEA's Special Operations Division, especially from affidavits, court proceedings or investigative files. The entry was published and posted online in 2005 and 2006, and was removed in early 2007. The IRS is among two dozen arms of the government working with the Special Operations Division, including the Federal Bureau of Investigation, the National Security Agency and the Central Intelligence Agency.

An IRS spokesman had no comment on the entry or on why it was removed from the manual. Reuters recovered the previous editions from the archives of the Westlaw legal database, which is owned by Thomson Reuters Corp, the parent of this news agency.

Are they trying to confuse people by conflating stuff that happened during the Bush years with actions taken by the current adminstration?

[Warren Stupidity]

2. So if any of this happened after 2008, you are against it, right?

[ProSense]

3. There is that "if"

Deal with the facts.

[Warren Stupidity]

7. I see once again you cannot answer a simple question.

[dkf]

6. What does it matter when it started? It's still going on!!!!!

"The guy before me did it" is no defense.

[ProSense]

8. The info was pulled in 2007, and you

"What does it matter when it started? It's still going on!!!!!"

...don't know that.

U.S. Spy Program Lifts Veil in Court

Justice Department Says Prosecution in Terrorist Cases Must Tell Defendants When Surveillance Program Was Used

By DEVLIN BARRETT

The Justice Department acknowledged for the first time in a terrorism prosecution that it needs to tell defendants when sweeping government surveillance is used to build a criminal case against them.

The about-face, contained in a Tuesday court filing, marks another way in which the Obama administration is adjusting to revelations by former National Security Agency contractor Edward Snowden about phone and Internet surveillance by the NSA. The revelations forced the government to acknowledge publicly aspects of its widespread collection of Internet and phone records, giving critics of such surveillance more legal ammunition to challenge the programs.

The filing suggests a new potential avenue for legal challenges to the surveillance programs.

<...>

Patrick Toomey, a lawyer at the American Civil Liberties Union, called the filing "a very important first step, because it's the government finally owning up to some of its obligations in a way that it hasn't really grappled with up to this point.'' The Justice Department didn't immediately comment.

The change in legal direction also brings government prosecutors in line with statements Solicitor General Donald Verrilli made to the Supreme Court last year...that in cases where a bulk surveillance program led to evidence against criminal defendants in court, those suspects must be notified that the evidence was derived from the surveillance program.

His assertion was an important one, because the high court ultimately adopted his characterization of when notification was required.

- more -

http://online.wsj.com/article/SB10001424127887323854904578638363001746552.html

Note this article appeared a week before the Reuters piece. It also indicates that this is a position that Solicitor General Donald Verrilli took last year.

[dkf]

9. SOD is still in use today and is reviewed annually.

DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.

http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805

Just because they pulled the docs from public records (obviously they made a mistake in making it available) doesn't meant they stopped the practice. More likely it means someone realized their oopsie.

[ProSense]

10. "They declined to provide Reuters with a copy of their most recent review."

Well, that clears up everything.

[dkf]

11. Well you seem to think its old news and is no longer going on or something.

Actually I have no idea what your point is when you point to 2007 or 2008. It's all Bush's fault?

[leveymg]

12. I notice that your interlocator has moved on, and didn't answer the question.

She must be too busy to address the points raised that cast real doubt on her version of things.

[dkf]

13. Must be hard to live with all the dissonance.

I do not envy being so emotionally invested...

[leveymg]

16. It's a strain on the psyche to be a True-Believer or a True-Fan----.

Gotta admire the dedication to the cause, though.

[ProSense]

14. It's a 2005 document pulled in 2007. Pointing to a non-response

from the current administration is not validation of the document.

[dkf]

15. From two current DEA officials:

"But two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily.". (As in possibly yesterday or today mind you)

"The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept.""

http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805

Maybe you are trying to attack the IRS docs but two senior DEA officials just confirmed this is still in use for the DEA.

[leveymg]

17. Thanx for that. Helps if you read the article, instead of just posting for effect.

Why would they voluntarily give up a tool as valuable as a writ to cheat the defense and lie in court? Same goes for warrantless NSA profiling.

[ProSense]

19. You keep posting from the same article

and ignoring the point I made: http://www.democraticunderground.com/10023425612#post8

[dkf]

20. Whoa are you asserting the entire Federal justice system is informing all defendants when FAA info

Is used? Really?!?!?!

Lol. Well if you are that deluded...

[ProSense]

21. LOL! So now you decide to dismiss the point?

At least you admit that it's happening.

[dkf]

22. I am not aware of a single case where it has been cited. When the first incidence pops up...

It will be used to challenge the program's constitutionality. I await with baited breath for that instance as does the EFF and the ACLU and any other halfway credible civil liberties organization.

[Fumesucker]

4. Who doesn't want their intelligence all nice and squeaky clean? n/t

[WillyT]

5. K & R !!!

[GiaGiovanni]

18. K & R

K

[woo me with science]

23. K&R

Important post. Thanks.

[woo me with science]

24. This is the type of behavior we used to use

as an egregious *hypothetical* example of how corrupt things could get under an authoritarian surveillance state. Now we not only know it's happening, they have an Orwellian normalizing name for it.

[woo me with science]

25. This is what totalitarian states do.

This is the definition of tyranny.

[Recursion]

26. That's the best description of it

Another reason the DEA needs to be consigned to the dustbin of history.

[woo me with science]

27. kick

[Lee-Lee]

28. This kind of stuff is done on the local level too

I am against it as it is being done here, for sure. But police in every department will use pretext stops to stop a vehicle they have information that may have drugs, the driver have warrants, be drunk, etc.

One example- a bartender at a biker bar would often drop a text if she thought somebody was leaving the bar DUI. No way she could have stopped them in that environment, and had the officers listed her as the informant she would have at a minimum lost her job and not been able to help get more drunks off the road, if not saw repercussions from the clientele there.

So when she reported one they looked for it, watched until they had a good, legitimate reason to initiate a traffic stop, and went from there.

The key was making sure that the reason for the traffic stop was good enough to stand on its own in court.

The big difference here is this was a person voluntarily reporting observations of behavior in a public place, and not info gathered from deep spying on people.

[dkf]

29. You hit it on the head...A true anonymous tip is a legitimate tool.

I don't think anyone has a problem with that. It's the government pretending to have anonymous tips when actually it is violating our against unreasonable search and seizure that is the problem. Also the institutional practice of lying and perjuring testimony is outrageous! If the case is based on the agents credibility, they obviously have none.

[cui bono]

30. knr

because I still can!