This Is How the Feds Illegally Obtain Evidence of a Crime and Lie About It in Court

The NSA and Justice Department go after suspects in crimes unrelated to national security using an unlawful, deceptive practice called "parallel reconstruction."


While the political commentators in the nation's capital are wrapped up in the debate over what to do about ISIS, and as one third of the Senate and nearly all members of the House campaign for re-election, the president's spies continue to capture massive amounts of personal information about hundreds of millions of us and lie about it.

The president continues to dispatch his National Security Agency (NSA) spies as if he were a law unto himself, and Congress—which is also being spied upon—has done nothing to protect the right to privacy that the Fourth Amendment was written to ensure. Congress has taken an oath to uphold the Constitution, yet it has failed miserably to do so. But the spying is now so entrenched in government that a sinister and largely unnoticed problem lurks beneath the surface.

NSA documents released by Edward Snowden show that the feds seriously deceived Congress and the courts in an effort to spy upon all of us and to use the gathered materials in criminal prosecutions, even though they told federal judges they would not. Among the more nefarious procedures the feds have engaged in is something called "parallel reconstruction." This procedure seeks to hide the true and original source of information about a criminal defendant when it was obtained unlawfully.

For example, if the NSA, while unconstitutionally listening to the conversations of Americans hoping to hear about plots to harm other Americans (it has revealed no such plots from among the trillions of private conversations it has monitored since 2005), comes across evidence of a bank robbery, the NSA will pass that evidence on to the Department of Justice (DOJ). The NSA routinely does this notwithstanding representations to the FISA court that authorizes its spying that it is not in the business of gathering evidence in criminal cases.

It makes those claims because the George W. Bush and Barack Obama DOJs have argued to the public and to the FISA court that the Fourth Amendment, which prohibits all searches and seizures without a warrant, somehow applies only to criminal investigations and not to domestic spying. No Supreme Court decision has ever stood for that proposition, and the plain language of the Fourth Amendment makes no distinction between intelligence gathering and evidence gathering.

Rather, the language of the amendment is so broad and sweeping ("The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated" except by a search warrant issued by a judge upon probable cause.) that for 230 years it has been held to restrain and regulate all government efforts to gather private information—no matter their purposes.

Nevertheless, the NSA's agents and lawyers felt it necessary to concoct this groundless, disingenuous, and fictional legal distinction in order to persuade the FISA court that it is legally acceptable to permit untethered spying so long as the fruits of that spying are not used in criminal prosecutions. Curiously and naively, judges of the FISA court bought that argument.

So, what happens when the spying uncovers ordinary criminal behavior unrelated to national security? In order to keep its hands clean, so to speak, the NSA sends that evidence to the DOJ, whose lawyers and agents in cahoots with the NSA then concoct an explanation as to how the DOJ came upon the evidence. Of course, that explanation curiously and carefully omits the mention of domestic spying. DOJ lawyers know that if the beginning of the process of obtaining evidence is found to be unconstitutional, then the evidence itself can be useless in court.

This is what lawyers and judges call the "fruit of the poisonous tree." Were this not so—that is, if the government could spread any net as broad and as wide as it wished and use whatever the net caught as evidence in criminal prosecutions—then the Fourth Amendment's search warrant requirement would be meaningless because it would not protect the right to privacy as its authors intended.

Thus, in order to maintain the facade of spying only for domestic intelligence purposes, and to appear faithful to public and secret promises (the FISA court only sits in secret) that any evidence of criminal behavior inadvertently discovered by NSA spies will not be used in criminal prosecutions, and so as to keep the mechanisms of domestic spying hidden from non-FISA federal judges who are more likely to apply normative interpretations of the Fourth Amendment than their FISA court colleagues, the NSA and the DOJ began the process of parallel reconstruction.

Parallel reconstruction consists largely of the creation of a false beginning—an untrue one—of the acquisition of evidence. This, of course, is criminal. Lawyers and agents for the NSA and DOJ may no more lawfully lie to federal judges and criminal defense attorneys about the true origins of evidence than may a bank robber who testifies in his own defense claiming to have been at Mass at the time of the robbery.

While parallel reconstruction is deceptive, unlawful and unconstitutional, I suspect it is but the tip of a dangerous iceberg spawned by the unbridled NSA spying that Bush and Obama have given us. When you mix a lack of fidelity to the plain meaning of the Constitution with a legal fiction, and then add in a drumbeat of fear, enforced secrecy, and billions of unaccounted-for taxpayer dollars, you get a dangerous stew of unintended tyrannical consequences.

Is this the government the Framers gave us? Is this the government anyone voted for? Is this a faithful and moral commitment to the Constitution, the rule of law, and personal liberty? The answers are obvious.

NEXT: Brickbat: To Protect and Serve

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  1. The mere fact that they not only lied to Congress during its intelligence oversight but also spied on the oversight committee itself and that wasn’t enough to get Congress to rein them in, I have little faith that the other branch of government will be any better upholding constitutional protections for the little people.

    1. How many people in the world would feel safe pissing off the people who knew our secrets?

      1. “We are going to purge these agencies who have made fabrication of convincing photographic evidence an art form since the start of the Cold War. They will say many things to slander their enemeis and defend their budget. Do not believe them.”

      2. Me!

        I don’t care. There’s nothing I’ve done that the public broadcast of, would hurt me more than the utter annihilation of these scumfucks would help me.

        1. I have a lot to hide. I drink far too much and don’t recycle.

    2. What Fist said.

    3. Congress will never rein them in. Pols are almost definitionally dirty and the NSA has the dirt and congress knows it.

      1. So essentially Obama and Holder have a dictatorship anytime they choose to exercise it.

        1. Well Obama does have a database apparently:


      2. We’re not going to get anywhere appealing to their sense of Fair Play and Justice. The problem isn’t that politicians are dirty, it’s that they no longer fear each other. We have to fix that.

    4. Technically that was the FBI not the NSA, but point taken.

  2. NSA and DOJ may no more lawfully lie to federal judges and criminal defense attorneys about the true origins of evidence than may a bank robber who testifies in his own defense claiming to have been at Mass at the time of the robbery.

    The judge consistently forgets about the FYTW clause. Plus, IMMUNITY, bitchez!

  3. What if The Judge ? wrote an article that wasn’t composed solely of questions? How would that make you react? You know how I react?

    Judge, am I disappoint?

  4. Know what the judge should do?

    Take his message out to Jon Stewart!

    1. Stewart would play it off as some kind of defense of civilization and try to pretend to be the reasonable one.

  5. The question has been posed as to whether there’s verification of the Judge’s assertions out there. Anyone got anything?

    1. I thought when Edward Snowden blew the whistle something would be done about the NSA. The scary thing to me is now everyone KNOWS their information is being collected and still there is nothing being done. There is nothing that can be done.

      1. I think it’s hard to convince tens of millions of people who put their intimate details on Facebook and Twitter that the government looking at same is a problem.

  6. Damn, I had to read all the way to the end before I hit some interrogatives.

  7. Wow! I rarely agree with Judge Napolitano on anything, but he is ‘spot on’ here! More impressive is that he even criticized the “W” led DoJ, which is as bad as the Obama led DoJ on this matter, which will probably get him thrown off Fox News for sure! Well done…

    1. His show has been off air for like two or three years already.

    2. Is this a joke? Judge Napolitano wrote “Lies the Government Told You” and has publicly stated that George W. Bush and Dick Cheney should be prosecuted for violating the Constitution.

  8. Good article. And yes, the Bush administration deserves some of the blame. No doubt. There’s more than enough to go around.

  9. “For example, if the NSA, while unconstitutionally listening to the conversations of Americans hoping to hear about plots to harm other Americans (it has revealed no such plots from among the trillions of private conversations it has monitored since 2005), comes across evidence of a bank robbery, the NSA will pass that evidence on to the Department of Justice (DOJ). ”

    There’s so much bullshit in this one paragraph, I don’t know where to begin.

    First, nobody, at any time, has stated that the NSA “listens” or monitors the conversations of Americans without a warrant. They collect metadata without a warrant, the FISA courts have low standards for issuing warrants, and those are the issues. Hyperbole and hysterics are unnecessary.

    Second, the assertion that the NSA has listened to “trillions” of phone conversations in the last nine years is utterly fucking ludicrous. Unless there’s a secret trove of five-million people that do nothing but illegally listen to phone conversations 24/7/365, that’s not even remotely possible.

    Third, according to all the available information, “parallel reconstruction” is a technique used when a legally monitored target is prosecuted, and the gov doesn’t want to reveal the classified sources and methods used to gather evidence. The evidence is still the evidence, and the only thing obfuscated is how that evidence came to be.

    1. 1. Yes they have.
      2. They monitor it by computer.
      3. It’s still a lie.

      1. 1. Bullshit. Show me.
        2. Bullshit. Not fucking possible.
        3. Yes, it is.

    2. First, they can and do listen to any conversation they want to. Period. Simply because they can’t or choose not to listen to all doesn’t make it any less of a problem.

      Second, the fact that the NSA is simply too understaffed to do all the listening they want to do should NOT make anyone comfortable.

      Third, you managed to rephrase what the Judge and others said – how does that make it ok to lie about illegally obtaining evidence? You are almost there to saying “if you aren’t doing anything wrong, what do you have to hide?” … so close.

      1. First, it is no-shit illegal to listen to the electronic communications of US Persons without a warrant. With the exception of 12 documented cases, there is no evidence that it’s happening. That’s not an assumption, it’s a fucking fact.

        Second, “they” aren’t interested in your boring conversations with your mother, girlfriend, or boss. “They” have legitimate targets that they are trying to monitor, and “they”, don’t even have the resources to do that.

        Third, while I don’t agree with the concept of “parallel reconstruction”, it would be pretty stupid of us to reveal classified sources and methods every time we attempted to prosecute a Colombian drug lord.

      2. And BTW, it’s not lying about “illegally obtaining evidence”, it’s lying about how legally obtained evidence was obtained.

        1. You are a fucking liar Mouse. After the Boston Marathon bombing, a former NSA employee (per the Guardian, don’t have that link) specifically stated the NSA had the ability to go back and review all calls from BOSTON for evidence. He said this on CNN.

          I would imagine this is the program the official was talking about:

          In the initial deployment, collection systems are recording “every single” conversation nationwide, storing billions of them in a 30-day rolling buffer that clears the oldest calls as new ones arrive, according to a classified summary.

          So, I’ll say it again – you are a fucking liar. I’ll add stooge and imbecile to that, as well.

          The NSA has the ability to listen in our phone calls and anything else they want (most likely) without a warrant.

          And lying about where evidence comes from is unconstitutional in itself. You have a right to confront your accuser and the evidence against you. That’s not possible with parallel construction. I don’t care how many kangaroo courts approve this bullshit.

          1. The Guardian story I referenced earlier:

            On Wednesday night, Burnett interviewed Tim Clemente, a former FBI counterterrorism agent, about whether the FBI would be able to discover the contents of past telephone conversations between the two. He quite clearly insisted that they could:

            BURNETT: Tim, is there any way, obviously, there is a voice mail they can try to get the phone companies to give that up at this point. It’s not a voice mail. It’s just a conversation. There’s no way they actually can find out what happened, right, unless she tells them?

            CLEMENTE: “No, there is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation. It’s not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.

            BURNETT: “So they can actually get that? People are saying, look, that is incredible.

            CLEMENTE: “No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not.”

            1. Not necessarily something the FBI is going to present in court…

              What the fuck does that sound like, Mouse, you sorry sack of shit?

              1. It sounds to me like Tim Clemente, a former FBI counterterrorism agent, doesn’t know what the fuck he’s talking about, and neither do you. Unless the Boston bombers were specifically targeted for monitoring BEFORE their conversations took place, there is no fucking recording of their conversations. It is fucking ILLEGAL to monitor the communications of US Persons without a warrant, it isn’t happening, and that’s a fact. No amount of hand-wringing and bullshit statements from washed-up former FBI agents looking for publicity will change that.

                1. It’s a fact that it’s not happening because, as you say, it’s illegal? No, that means it’s a fact that it’s illegal. That doesn’t mean the government wouldn’t do it, you fucking lying sack of shit.

                  But sure, you know more than an FBI counter-terrorism official.

                  On Thursday night, Clemente again appeared on CNN, this time with host Carol Costello, and she asked him about those remarks. He reiterated what he said the night before but added expressly that “all digital communications in the past” are recorded and stored:

                  And those documents from the Washington Post? Also lies and false propaganda.

                  Happy to make you look like the deflecting, lying, statist scum that you are, buddy.

                  1. Cool your jets punk. Just because you read something in the media or saw it on TV doesn’t make it so.

                    “On Thursday night, Clemente again appeared on CNN, this time with host Carol Costello, and she asked him about those remarks. He reiterated what he said the night before but added expressly that “all digital communications in the past” are recorded and stored:”

                    Clemente is, flat-out, a fucking liar.

                    And yes, I do know more about this than a former FBI counter-terrorism official.

                    1. Just because you read something in the media or saw it on TV doesn’t make it so.

                      But surely the guy on the comment section of a site trolling is believable. I mean, anyone with that kind of knowledge would clearly be running around hinting to people what they know and what’s REALLY going on to us peons.

                      You are piece of garbage. The only punk here is you. I hope you get ball cancer and die.

                    2. And I hope you’re kidnapped, duct-taped to a folding chair in a storage shed, and skinned with a pair of pliers while a battery charger connected to your genitals cooks your dick off, so there.

                      Grow up dumbass. You have no fucking idea what’s going on other than what the media wants you to see.

                    3. And beyond posting cryptic bullshit that hints at some superior knowledge, how about you construct an actual argument or shut-up already?

                      Because no rational human being would believe it’s not happening just because Anon E. Mouse said it’s not when there is evidence (presented already) to the contrary.

                    4. There was nothing cryptic about it. I plainly stated “I do know more about this than a former FBI counter-terrorism official.” Take that for whatever it’s worth; I don’t care.

                      If you review everything that’s been released by Greenwald, Snowden, and the media over the last year, you’ll notice that 99% of it has nothing to do with domestic spying. With few exceptions, the information that’s been released reveals legal, classified collection efforts against legitimate targets. In regards to domestic spying, what you’ve got is a bunch of “maybe”, “could have”, “might”, “perhaps”, “has the capability to”, etc. Is metadata in the US being collected? Yep, by your phone company. Is someone looking at the shit coming into the country, from a foreign country, through fiber trunks? Probably, and they should be, but just how closely can one scrutinize petabytes of data? Does the NSA spy on foreign countries? I sure hope so; that’s what we pay them to do. Spy agencies are gonna spy.

                    5. You know,it’s funny how nobody but leftists believes the leftist media until it’s a story about government gone bad, in which case everyone slobbers all over the media’s leftist, communist cock. In a matter of days, the media took the Snowden shit from “they’re collecting metadata”, to “they’re collecting everything, and they’re spying on everyone including the Germans and French, and Brazilians, and everyone else”. It was almost as if there was a concerted effort to destroy and discredit the largest gatherer of foreign intelligence in the Intelligence Community. Just imagine the scenario had Bush been Commander in Chief when this became news. There would have been cries of “impeach” ringing from the rooftops. What we get instead is a total whitewash of the Dali Bama’s involvement, even though he’s in command of the DoD, and the NSA is a component of the DoD.

                    6. Wait a minute – they are scooping up the phone calls of entire countries, and that’s legitimate and targeted to you? Even the stuff they intercept that heads into the states that scoops up millions of Americans LEGAL interactions? There is nothing targeted about any of the stuff revealed. Once again, you are just lying.

                      Not only that, but outside saying the links above are wrong (with no proof to back it up beyond your CRYPTIC reference to what you really know), you haven’t addressed the points raised.

                      You don’t have an argument, and nor are you very bright. An argument doesn’t rest on a series of assertions.

  10. Seems I remember the DEA has also been a major recipient of such nefarious intel.

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