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Jan 9, - Human Rights Watch's investigation nevertheless indicates that this use of secret evidence may be occurring regularly in cases throughout the.
Table of contents

• Why big business can count on courts to keep its deadly secrets
• Intelligence and Evidence
• Related Posts

In another case, defendant Agron Hasbajrami had already pleaded guilty when the government notified him that Section surveillance had been employed in his case. As this report was being finalized, the Intercept reported that it had identified a case in which the government notified a defendant of monitoring under a FISA order without ever disclosing that the investigation had also relied on Section surveillance data. As noted above, Reuters has identified a DEA unit known as the Special Operations Division as disseminating intelligence and other information in a manner that is not revealed during prosecutions.

In other words, the training indicated that if the DEA wished to continue to benefit from information the government was gathering through certain methods, it needed to prevent the public disclosure of those methods. The DEA therefore needed a centralized team to coordinate its field operations and cases. Maltz told Human Rights Watch that the division incorporates representatives from perhaps 30 different agencies, including partners from the United Kingdom, Canada, and Australia.

Along with the United States, these three countries and New Zealand are members of an international intelligence-sharing arrangement known as the Five Eyes. It was … intelligence-led policing. The Justice Department reportedly ended this program in September US diplomatic cables from and that were later disclosed to WikiLeaks show DEA agents asking the SOD to provide information concerning telephone numbers furnished by foreign government entities in relation to drug investigations. Today, the data the SOD gathers, stores, and searches could extend well beyond telephone call records.

And … they came on board.

When we all left, we got little keychains of Darth Vader. During the same interview, however, Rizer emphasized that the public should think about just how extensive US surveillance powers are. Sources consistently describe the SOD as distributing tips to other agencies, subject to a mutual understanding that the tips will not be revealed in court proceedings. Typically, the division does not disclose the original source of its knowledge, even to other law enforcement officers or prosecutors.

They try to do the right thing percent of the time. The available evidence indicates that the government has a variety of ways of carrying out parallel construction. As noted above, law enforcement agents in the US may obtain records of telephone calls although not the content of the conversations without a warrant. An entry in an IRS manual that was reportedly available to personnel from to indicates that parallel construction methods may include—among others—subpoenas of domestic telephone call records or requests for foreign call records or subscriber information.

In some circumstances, the government may engage in parallel construction by eliciting information directly from suspects or asking them for consent to perform a search. Grobstein , highlights the potential use of consent searches: based on security videos recorded at the Albuquerque bus station, defense attorneys alleged that a DEA agent secretly and unlawfully searched luggage left on a long-distance bus during a layover, then—after the passengers had re-boarded—approached the defendant seeking consent to search his bag. Pretextual traffic stops, discussed below, may also lead to attempts by officers to obtain consent to perform a search.

It is also possible that the government is using some forms of intelligence surveillance to hide other forms of such surveillance.

For example, as explained above, the government has previously given defendants notification of individualized orders under longstanding and relatively uncontroversial provisions of FISA while avoiding disclosing its use of more controversial Section programs. A defendant who received notice of Section surveillance in went on to ask for the disclosure of any monitoring pursuant to two other intelligence authorities, Executive Order and national security letters; the prosecution responded that he was not entitled to any such notification.

To resolve such matters, the law enables the court to take actions such as holding pretrial hearings, issuing protective orders, and directing the government to provide the defendant with a redacted copy or declassified summary of classified evidence. At least in the area of narcotics enforcement, one of the best documented parallel construction techniques is pretextual traffic stops.

And then, of course, we are expecting or hoping that there would be something more coming out of that traffic stop, such as the seizure of narcotics or weapons, etcetera. The earliest published court opinions located by Human Rights Watch describing what may have been pretextual stops for parallel construction purposes describe stops requested in Indiana and Illinois in For several reasons, these cases may represent a fraction of the actual total: not all opinions are published or otherwise included in databases, many defendants in the US accept plea bargains at early stages of their cases such that courts never write opinions resolving legal issues , and there is no indication that the government believes it is legally obligated to inform defendants that a traffic stop was pretextual.

Court decisions located by Human Rights Watch confirm these accounts of how traffic stops conducted to facilitate parallel construction often unfold. First, an official involved in a related investigation contacts a state or local law enforcement officer with a request that a vehicle matching a certain description be stopped. After stopping the vehicle, the officer may ask for consent to search it.

Courts across the nation have accepted this practice of pretextual traffic stops, if at times reluctantly. The transcript of the cross-examination of a state trooper by a defense attorney in a Georgia case illustrates how this rule facilitates parallel construction:. After the stop has occurred, other US Supreme Court decisions allow officers to conduct canine sniffs without a warrant, although they cannot unreasonably prolong the stop to do so in the absence of probable cause to believe an offense has occurred.

As a result, some courts have held that an action taken by law enforcement during a traffic stop was based on a reasonable suspicion or probable cause as applicable , even though the action in question would otherwise have been unconstitutional due to a lack of sufficient fact-based suspicion on the part of the officer who actually carried out the stop. Some courts have begun to express discomfort with the consequences of the permissive doctrines that have developed in relation to wall stops and other traffic stops—but believe they have no choice but to apply them.

Most strikingly, Judge Marsha Berzon of the Ninth Circuit expressed frustration in a concurrence with a ruling that a traffic stop was valid even though the officer conducting the stop lied to the driver when claiming that a traffic violation had occurred. Human Rights Watch has received conflicting information about the frequency of parallel construction.

Thus, while the frequency with which the government uses parallel construction to conceal intelligence surveillance or other intelligence activities remains unclear, it may be common. More broadly, the evidence suggests that the use of parallel construction to conceal some type of investigative source intelligence-related or otherwise from defendants, at least during the initial stages of an arrest and prosecution, is widespread. However, a few suggested that law enforcement may be deploying the technique in more minor cases.

For example, in a Louisiana state case, a DEA tip led to the wall stop of a suspect who was found to be carrying approximately five pounds of marijuana and was ultimately charged with a single count of possession with intent to distribute. The government may also be deploying parallel construction techniques other than traffic stops against relatively low-level offenders. In , USA Today reported that police in Baltimore had used cell-site simulators to investigate crimes such as harassment, cell phone and automobile theft. According to the report, the use of the devices in these cases had previously been undisclosed.

In other words, the government may be concealing certain investigative activities based on its own determination that its later efforts to relocate the same or related information qualify as independent or sufficiently attenuated from the original activity to avoid the risk of taint from any unlawful conduct or that officials inevitably would have discovered the same information even without the potentially unlawful behavior.

United States , a case in which the court accepted that it may be constitutional for the government to conceal the identity of a human informant from a defendant in some circumstances. United States , in which the Supreme Court issued a similar holding. Defendants are also deprived of the opportunity to make counterarguments. In some cases, the government has acknowledged in court proceedings that officers conducted a pretextual traffic stop to prevent suspects from realizing at initial stages that information had been obtained from a particular source.

In other cases, however, defense attorneys who have suspected that the government has employed some form of parallel construction to conceal an investigative technique have struggled to compel the prosecution to disclose whether this had in fact occurred; this is especially true where the attorneys argue that an intelligence source may have been involved. Our review of relevant court documents indicates that when defendants make motions to find out whether the government has concealed the true origins of information in their cases, the prosecution rarely answers in a straightforward manner.

Instead, prosecutors deploy arguments that prevent defendants from learning definitively whether intelligence or other undisclosed information or sources were used in the investigation. While this response may be a common one to defense motions in criminal cases, it takes on a particular significance in light of reports that government agencies may intentionally avoid telling prosecutors that they engaged in sensitive investigative techniques [] , as well as the clear difficulties defendants face in obtaining and offering any evidence about classified programs or other activities the government has deliberately sought to conceal.

In United States v. Very similar language—and the same lack of an explicit affirmation or denial—has appeared in prosecution responses in several other federal cases around the country.

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Another illustration is United States v. However, neither in his written motion nor in the oral argument … did the Defendant establish that this information did in fact exist. Defendants have sometimes sought to reply to these arguments by highlighting circumstances or evidence suggesting that their concerns are more than merely speculative.

For example, Jessica Carmichael, one of the defense attorneys in Collins , referred to NSA documents leaked by Snowden referring to operations against Anonymous. A more fundamental problem is that even where the defense has reason to suspect intelligence surveillance lies behind a case, the classified nature of these activities leaves no choice but to guess.

The purpose of a criminal case is to determine the guilt or innocence of a criminal defendant. The prosecution agreed to make an initial inquiry with the intelligence agencies about a specific matter, although the case was largely resolved shortly afterward through plea bargains and the dropping of charges against one defendant. For example, in United States v. Lara , a federal drug prosecution in California, the defense moved in for the disclosure of DEA administrative subpoenas that it was concerned might have been used to obtain more types of cell-phone metadata than the government had revealed, or to conceal other surveillance activities.

We have to draw the line somewhere. In a striking exchange, the prosecutor then explicitly defended the practice of parallel construction, even where the government has used it to conceal an investigative technique that it knows may be illegal:. The Government wants to have it both ways. Three years later, in a domestic terrorism prosecution arising from the armed occupation of an Oregon wildlife refuge by right-wing activists United States v.

In a motion in United States v. Khan , a federal prosecution in Oregon in which the defendant belatedly received notice that Section surveillance had been involved in the case, prosecutors opposed a defense effort to force the government to ensure that any relevant intelligence information not be destroyed. Defense attorneys have responded to such contentions by pointing out their logical weaknesses and the obvious difficulties they create for defendants who are legally presumed to be innocent.

In a joint interview with Human Rights Watch, two other attorneys who represented defendants in Collins explained the difficulties they had faced. One of the most significant controversies concerning intelligence surveillance that has erupted in US courts to date has involved government claims in a challenge to the constitutionality of Section of FISA, Clapper v.

Amnesty International USA. Of further relevance to this concern is an exchange in United States v.

Sedaghaty , in which the government charged the defendant with fraud- and customs-related violations and sought to compel a bank to disclose relevant records held in another country. Both the bank and the defendant suggested during a hearing that a US government agency even if not the prosecution might already have those records, and the defense indicated that the court should make inquiries accordingly. In other cases, however, defendants have only learned about previously unrevealed investigative techniques due to carelessness by officials or comments by politicians to whom the government has given classified briefings.

The speech implied that the government had used intelligence surveillance under the act in its investigations of several defendants who had not previously received any notification from the government to this effect. The Snowden leaks also gave rise to a challenge by the defendants in Collins , and an apparent slip by the government in Sedaghaty alerted the defense attorney and judge to the possibility of undisclosed evidence.

This, in turn, raises the specter of inconsistent or arbitrary justice. Parallel construction may have a serious impact on the human rights of defendants in United States criminal cases—people who are, in line with what human rights require, [] presumed to be innocent until proven guilty. Additionally, when it is used to conceal surveillance methods, parallel construction deprives the US public—and legislators responsible for enacting laws to govern what law enforcement and intelligence bodies may do—of an understanding of the true extent and impact of secret monitoring.

As noted above, by avoiding the potential application of the exclusionary rule, parallel construction also effectively removes one of the most important incentives for law enforcement and other authorities to obey the law. Furthermore, international human rights law addresses surveillance: all government interferences with privacy including the privacy of communications must be necessary to achieve a legitimate aim and must be done in accordance with both international and domestic law—including, in the United States, the Constitution. Parallel construction violates, or facilitates violations of, each of these rights.

Additionally, parallel construction may be preventing defendants from being notified that they have been surveilled or that some other measure interfering with privacy has been involved in their cases. In Arizona v. In another case, United States v. Mohamud , the defendant was only able to challenge the constitutionality of the surveillance of his communications under Section of FISA and argue that the resulting evidence should have been excluded because the government eventually provided notice that the surveillance had occurred.

Al-Jayab told an Illinois federal court in March Parallel construction may also deprive a defendant of exculpatory information, as well as the opportunity to contend that the investigative source or method the government has employed produces evidence that is inaccurate, incomplete, biased, or otherwise flawed. Where the specific parallel construction technique of pretextual traffic stops is concerned, the demand for law enforcement officers to find an independent reason to stop and search a particular person or vehicle raises a risk that those officers will engage in unlawful behaviors in order to carry out this secretive task.

At a broader level, parallel construction also creates a risk that the outcome of a case, and thus the consistency of the justice system for both defendants and any victims, will depend on how willing a defense attorney is to press for the revelation of undisclosed methods—particularly those that would be classified. This situation jeopardizes the fairness and equality of trial processes. The shield of secrecy parallel construction creates also means that the public and even Congress may not realize that the executive branch is interpreting surveillance laws as allowing certain activities—violating the human rights requirement that such laws be clear and have foreseeable consequences.

Furthermore, the public is unlikely to pressure Congress to change the laws or impose greater transparency requirements—crucial means of reining in executive power in democratic societies—if it is unaware of the surveillance taking place. Defense attorneys interviewed by Human Rights Watch were scathing in their assessments of parallel construction. And they still do it.