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Federal Agencies May Be Regularly Hiding Surveillance Methods in Criminal Cases

"This use of secret evidence may be occurring regularly in cases throughout the country."

Allen Eyestone/ZUMA Press/NewscomAllen Eyestone/ZUMA Press/NewscomThe U.S. government uses secret evidence to build criminal cases, according to a report released today by Human Rights Watch.

The report offers one of the most comprehensive looks yet at "parallel construction," a tactic where federal law enforcement hides classified or sensitive methods from courts by building a parallel chain of evidence after the fact.

The report shows that numerous federal law enforcement agencies send requests to local police to find reasons to perform traffic stops and searches on criminal suspects. Unless something goes wrong, defendants will never know the origins of the government's case against them.

Although it's difficult to find cases where parallel construction definitively occurred, the investigation "nevertheless indicates that this use of secret evidence may be occurring regularly in cases throughout the country—cases in which the person accused of an offense remains innocent until proven guilty and faces a potentially life-altering prison term."

The group notes that parallel construction raises several civil rights concerns, chiefly the right to a fair trial.

"When you have parallel construction, you have defendants and even judges who don't know how evidence was gathered and can't challenge the constitutionality of that," report author Sarah St. Vincent says. "What you have is very one-sided, where the government, on its own, is deciding what practices it thinks are legal."

St. Vincent says parallel construction could hide illegal searches that violate defendants' Fourth Amendment Rights, or that result in exculpatory evidence not being turned over, violating the Fifth Amendment. It could also be used to hide discriminatory actions by law enforcement.

The method was first revealed in a 2013 Reuters investigation, which detailed how the Special Operations Division, a secretive unit within the Drug Enforcement Administration (DEA), had been funneling surveillance tips to field agents and other agencies to build cases. Meanwhile, it trained agents to "recreate" evidence chains to keep classified methods hidden from defendants, judges, and even federal prosecutors.

According to the Human Rights Watch report, the Special Operations Division's activities were nicknamed "the dark side" and exiting agents were given Darth Vader keychains as tokens.

DEA training slides that I obtained via a 2014 Freedom of Information Act request shed further light on how widespread the tactic is. The FOIA request also resulted in perhaps my favorite redaction that I have ever received:

A DEA training slide on parallel constructionA DEA training slide on parallel constructionAlthough mass surveillance is usually identified with the war on terror and the National Security Agency, a subsequent USA Today investigation found the DEA and Justice Department had been collecting logs of billions of phone calls originating from the U.S. in a program that predated 9/11 by more than a decade.

Human Rights Watch found "numerous" federal and state judicial decisions where the government admitted after the fact to carrying out what are known as "whisper," "wall," "walled off," or "wall off" stops.

In such stops, federal law enforcement sends tips to local police to be on the lookout for a certain vehicle at a certain time. Local police then follow the suspect's car until it performs some traffic violation, allowing the officer to legally perform a stop and establish probable cause for a search.

The Human Rights Watch report cites one case, Arizona v. Wakil, where a "whisper stop" requested by the DEA was used to conceal the agency's warrantless use of a GPS tracker on the defendant's rental car. An Arizona judge overturned the defendant's conviction in state court only after evidence of the whisper stop emerged in federal court.

Although much of the investigative reporting on parallel construction has focused on the DEA, Human Rights Watch's investigation found ATF, DHS, and the FBI had all requested such stops by local police.

The report recommends that Congress pass laws requiring the government to disclose to defendants the origins of the investigations of their cases, which would amount to a ban on parallel construction altogether.

In a January 2 article for Reason, Sen. Rand Paul (R-Ky.) also called for banning parallel construction.

"[T]he government should be disallowed from taking that information and developing a parallel construction of a case, where the illegally obtained information is not used in court but is used by law enforcement to develop other information to mount a prosecution," Paul wrote. "Our Founders gave us the Fourth Amendment to prevent a tyrannical government from invading our privacy, and we are fools to relinquish that hard-won right because of fear."

Such a bill would undoubtedly face opposition from federal law enforcement, especially at the Justice Department, where Attorney General Jeff Sessions has made escalating the drug war a top priority.

"Does it bother me a little? Yeah," a former federal prosecutor, speaking anonymously, tells Human Rights Watch in the report. "But if it's gonna stop 100 keys [kilograms of drugs] from getting on the street, it's okay by me. I didn't make the rules. I just play by them." It's not a very fair game, though, if only one side knows the rules.

Because of its very nature, it's almost impossible to know often parallel construction is used.

"The problem with researching a coverup," St. Vincent says, "is you're not supposed to know what happened."

Photo Credit: Allen Eyestone/ZUMA Press/Newscom

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  • loveconstitution1789||

    Brady who?

    /most law enforcement types

    If you cannot prosecute people violating the law by obeying the law, don't even bother.

  • Jerryskids||

    I haven't had enough coffee yet to give you a good version of my shocked face, I'll re-read this later and try to give you an enthusiastic version.

  • ALWAYS RIGHT||

    If the history of evidence is concealed from the defendant, the defendant can not examine the evidence. If the source of evidence is concealed from the defendant, the defendant can not cross examine. Without these fundamental rights, there is no trial. There is a rubber stamp.

  • Fist of Etiquette||

    "Our Founders gave us the Fourth Amendment to prevent a tyrannical government from invading our privacy, and we are fools to relinquish that hard-won right because of fear."

    The Founding Fathers couldn't possibly have foreseen the profitability of the drug war.

  • Earth Skeptic||

    You want people not to be fools?

    There's your problem right there.

  • GroundTruth||

    The Founding Fathers couldn't possibly have foreseen the profitability of the drug war. For the purposes of this practice, what is the difference between drugs and tea?

  • Fist of Etiquette||

    No one's dumping smack into the harbor?

  • Longtobefree||

    Tea is just another slang term for the dreaded devil weed marijuana, you know.
    Popularized in the well known song advocating drug use "Tea for two".

  • Tionico||

    The tea was imported to the colonies by the government corporation British East India Tea Company, which needed some way of dumping the cheap two year old stale stuff crowing their Tilbury dock warehouses in London.. So the British gummit hatched the scheme to foist the stale stuff on the colonists AND tax it into the bargain. What PO'd the locals in Boston was not so much the tax itself (though they "declined" to pay it as demanded) but that the three ships were not allowed to deboard the merchandise until after the tax was paid.. BY the provate owners of the three vessels. This tied up their means of livelihood for weeks, costing them huge money. And THAT is why the tea was had overside, to free the ships so their owners could stop their losses and get on with making their living. Of course, it seriously rankled the Colonials as they learned that the Loyalist shoppes not only got the new crop fresh high quality goods, but that was not taxed to THEM. The double standard "some pigs are more equal than other pigs" meme bit more deeply than did the minimal tax. There ended up being NO profit on the tea trade to the Colonies. The Brits removed that by their decidedly unfair policies.

  • Tionico||

    Oh yes they did. The ink was barely dry on the Constitution and Bill of Rights ratification documents when they began to tax whiskey.... leading to a new war within their borders... that of producers versus revenooers, makers vs takers. Stills, money, crops, lands, all were taken when an "illegal" still was busted or a wagon load of hootch discovered and "confiscated" then forfeit. Always wondered how much of that was resold by the revenooers to line their own pockets. Of course, more than a few of them "got dissappeared" some how er nuther.......

  • Rhywun||

    "Does it bother me a little? Yeah," a former federal prosecutor, speaking anonymously, tells Human Rights Watch in the report. "But if it's gonna stop 100 keys [kilograms of drugs] from getting on the street, it's okay by me. I didn't make the rules. I just play by them."

    "I was just following orders."

    I wonder how many years his wounded conscience allowed him to ruin the lives of innocent people.

  • Curt||

    "I didn't make the rules. I just play by them."

    And, by "play by them", I mean that I break them. The rulebook is the Constitution. Writing a policy that lets you ignore that isn't playing by the rules. Tom Brady can't claim he was "just playing by the rules" if his basis for that is a handwritten note from Belicheck telling him that it's okay to deflate footballs.

  • GroundTruth||

    This makes general warrants look like child's-play. Not only does it strike at the very heart of a presumption of innocence and trial in open court.

  • sarcasmic||

    Presumption of innocence only applies to police officers. Everyone else is guilty. Period. A lawyer might get them off, but they are still guilty. Anything that the prosecution can do to withhold evidence or otherwise engage in an unfair trial is in the interest of justice, because the accused is guilty.

  • Billy Bones||

    Call me naive, but I always presumed this was standard operating procedure since the '20's and Silverthorne Lumber Co. v United States. If you can hide the poisonous tree, it's fruit appears wholesome and nutritious.

  • Curt||

    "St. Vincent says parallel construction could hide illegal searches that violate defendants' Fourth Amendment Rights, or that result in exculpatory evidence not being turned over"

    Could? COULD? WTF do you mean it "could" do that? It does that by definition. If there wasn't an illegal search to begin with, there wouldn't be any need for parallel construction. The entire concept of parallel construction exists specifically for the purpose of hiding an unconstitutional search.

  • Brett Bellmore||

    This! The biggest obstacle to doing something about this, is that it would require acknowledging the simply enormous scale of the illegal searches. Basically everything electronic, without any exception but really good cryptography. (Use of which brings you extra attention.)

    The other big obstacle is that the NSA's panopticon surveillance is the perfect tool for blackmailing politicians. No wonder so few of them have the nerve to complain!

  • Holmes IV||

    I can just hear the argument:

    Parallel construction only harms the guilty! If they look into my life and discover nothing illegal there will never be any need for a follow up "whisper" stop. It is only harming the guilty, so what risk is there? It gets bad people and drugs off the street, making my life safer!

  • Longtobefree||

    Mike, I guess the 10,000 jokes taught you sarcasm as well. Good point.

  • Tionico||

    the PROBLEM is someone besides a jury in open court in result of a fair trial decides who is guilty before the decision to make the stop, on any pretext, is made.

  • MO_liberty||

    I'm going to chiropractic school. Lots of cops need adjustment with all the 'looking the other way' required these days.

  • MO_liberty||

    Also, "Hiding Surveillance Methods"? Really? Could've just went with cops break the law and get caught. Could've went with something the least bit clickbaity, too.

  • Ron||

    If the were only using these techniques against drug runners most people would be fine with it but they end up using them against everyone for no reason other than job protection. End the drug war

  • Scarecrow Repair & Chippering||

    Allies in WW II used to do the same for Enigma decrypts -- make sure a patrol plane was seen before attacking a U-boat.

    Does this mean the DEA et al are the anti-Nazis, and by association the anti-Trumps?

  • BYODB||


    The report recommends that Congress pass laws requiring the government to disclose to defendants the origins of the investigations of their cases, which would amount to a ban on parallel construction altogether.


    If the constitution didn't stop them, what makes anyone seriously think that a mere law would do it? Serious question.

  • Longtobefree||

    Legislatures pass all sorts of laws that basically say "yep, the constitution says this, and we really mean it this time".

  • Atlasgolf||

    One more REASON we should disband the DEA. Successful drug dealers cheer the illegality. The biggest problem right now are legal drugs prescribed by the medical profession.

  • I am the 0.000000013%||

    Get rid of the DEA and the FDA and then we'll basically have drug issues comparable to alcohol issues. Sounds good enough for me.

  • Tionico||

    Yup. SIngle greatest cause of death in the US, more than double all "gun deaths", more than all motor crash deaths.

  • techgump||

    Wasting resources. You can spend your time demanding purported "representatives" spend thier time and your money on drafting yet more laws telling enforcement to stop violating the highest laws, which likely won't pass. But if it does, enforcemrnt will not be deterred. They are already violating law, and we know criminals break laws, so another law, in a system which most notably doesn't hold enforcement personally accountable for violating, isn't going to stop em. If anything, they'll just get more creative, secrective, and oppressive, and people will be right back to pleading "representatives" to do something using more taxpayer money. It's a sham.
    "I believe that all government is evil, and that trying to improve it is largely a waste of time." - H. L. Mencken

  • AD-RtR/OS!||

    Note to DoJ: Don't bring these cases into the courtroom of Judge Navarro in Las Vegas.

  • Tionico||

    Rest easy on that one. She had prior involvement with BLM at the BUndy Ranch, and KNEW what was going on "behind the tumbleweeds" with that corrupt organisation. The ONLY reason she did what she did (and I'm fine with this reason, as she DID to the right thing, though about two years too late) was because this one case became SO high profile. And SO MANY informed and motivated people were watching every aspect of the case as it unfolded, and the dirty skivvies got hung out on the line to air a bit. She did this to protect her own future career. ""Her motivation stank, but that does not change that she did the right thing.. two years late. She SHOULD have done this upon reading the rap sheets and the demands for solitary confinement, the denial of accuseds' right to the counsel of THEIR choice, and a few other things. BLM were so far out there they made Janet Reno look like a gentle sweet old schoolmarm in comparison. Had it not been for the hundreds of patriot protesters descending upon BUnkerville, video cameras and a few properly and lawfully carried arms, and some radio equipment to get the story out AS IT HAPPENED, we'd have read another account of a Waco massacre in Clark County Nevada, and a farcical tale of "religious fanatics" stealing public money for their own enrichment.

  • Art Gecko||

    What ever happened to the "fruit of the poisonous tree" rule?

  • markm23||

    It was swallowed by the "cops get away with perjury" rule. If they told the truth about how the evidence was obtained, the court would have to throw it out, but courts believe them even when their testimony seems quite improbable - and if they're caught in a lie by incontrovertible video evidence, they still aren't prosecuted for perjury, are rarely even fired, and the court will usually collude in keeping the proof that a cop lied in court from other defense attorneys.

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