Posted 7 months ago on June 16, 2014, 5:09 p.m. EST by LeoYo
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How the NSA Criminally Aids Criminal Cases
Monday, 16 June 2014 10:13
By Ray McGovern, Consortium News | Report
Rarely do you get a chance to ask a just-retired FBI director whether he had “any legal qualms” about what, in football, is called “illegal procedure,” but at the Justice Department is called “parallel construction.”
Government wordsmiths have given us this pleasant euphemism to describe the use of the National Security Agency’s illegal eavesdropping on Americans as an investigative tool to pass on tips to law enforcement agencies which then hide the source of the original suspicion and “construct” a case using “parallel” evidence to prosecute the likes of you and me.
For those interested in “quaint” things like the protections that used to be afforded us by the Fourth and Fifth Amendments to the Constitution, information about this “parallel construction” has been in the public domain, including the “mainstream media,” for at least a year or so.
So, I welcomed the chance to expose this artful practice to still more people with cameras rolling at a large conference on “Ethos & Profession of Intelligence” at Georgetown University on Wednesday, during the Q & A after former FBI Director Robert Mueller spoke.
Mueller ducked my question regarding whether he had any “legal qualms” about this “parallel construction” arrangement. He launched into a discursive reply in which he described the various ”authorities” enjoyed by the FBI (and the CIA), which left the clear impression not only that he was without qualms but that he considered the practice of concealing the provenance of illegally acquired tip-off information somehow within those professed “authorities.”
Bottom line? Beware, those of you who think you have “nothing to hide” when the NSA scoops up your personal information. You may think that the targets of these searches are just potential “terrorists.” But the FBI, Internal Revenue Service, Drug Enforcement Administration and countless other law enforcement bodies are dipping their cursors into the huge pool of mass surveillance.
And, chances are that if some of your scooped-up data gets shared with law enforcement and the Feds conclude that you’ve violated some law, you’ll never become aware of how they got onto you in the first place. They’ll just find some “parallel” evidence to nail you.
After all, it’s altogether likely for a great majority of us that some dirt can be retrieved with the NSA’s voluminous files an inviting starting point. AT&T, for example, apparently has kept metadata about its customers, as well as all other traffic going through its switches, for the past 27 years.
For those who are Caesar’s-wife pure and whose loved ones also approach perfection, “constructing” a prosecutable case may be more of a challenge. But relax not. If for some reason the government decides to get you – if you’ve popped up as somehow an obstacle to “national security” – it is not impossible. Even in recent decades, critics of government policies have ended up facing dredged-up, if not trumped-up, criminal charges over some past indiscretion or misdeed.
It has been my good fortune this year to sponge up data and wisdom – in equal measure – from NSA alumni like Bill Binney, Kirk Wiebe, Tom Drake, and Ed Loomis, who in early January authored “NSA Insiders Reveal What Went Wrong.”
More recently (on May 31), Bill and I took part in a panel discussion in New York, so this freshly sponged-up learning still dwelled in my frontal lobe when I was interviewed by RT on June 5, the anniversary of the first-published disclosure from Edward Snowden.
When asked how “ordinary people” in the U.S. were being affected by the disclosures about bulk collection, I passed along what I had recently learned from Bill and other whistleblowers regarding how law enforcement is masking illegal surveillance to the severe detriment of defendants’ constitutional rights.
Former FBI Division Counsel in Minneapolis Coleen Rowley – who, with Jesselyn Radack, Tom Drake and me, visited Snowden in Russia last October – told me of two legal doctrines established many decades ago: the “exclusionary rule” and the rule regarding the “fruit of the poisonous tree.”
These were designed to force over-zealous law enforcement officers to adhere to the Constitution by having judges throw out cases derived from improperly obtained evidence. To evade this rule, law enforcement officials who have been on the receiving end of NSA’s wiretap data must conceal what tipped off an investigation.
After the Tip-Off
Among the revelations over the past year was DEA’s definition of “parallel construction” as “the use of normal [read legal] investigative techniques to re-create the information received by DEA’s Special Ops Division” from NSA or other sources that can’t be acknowledged. Some of these sources may be confidential informants whose identities need protecting, but the NSA’s massive database has become a very inviting place to trawl for valuable leads.
As Reuters reported last August, “A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
“Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
“The undated documents show that federal agents are trained to ‘recreate’ the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.”
So, in this way, the NSA’s warrantless surveillance can result in illegal law enforcement. And the FBI, the DEA and other organs of the deep state have become quite good at it, thank you very much.
Here’s how it works: NSA’s domestic surveillance – though supposedly restricted to detecting terrorism – gets wind of some potentially illegal activity unrelated to terrorism. So, NSA passes the information on to the relevant law enforcement agency. It could be a vehicle transporting illegal drugs or a transfer of suspicious funds or pretty much anything.
This evidence then sparks an investigation, but the original information can’t be used legally because it was acquired illegally for “national security” purposes. After the tip, “parallel” law enforcement techniques are introduced to collect other evidence and arrest and charge the suspects/defendants.
The arrest is made to appear the splendid result of traditional detective techniques. However, if the court learns of the initial shenanigans, the defendant may be released because her/his constitutional rights were violated.
To avoid that possibility, the government simply perjures itself during the court discovery process by concealing the key role played by the NSA database, exculpatory evidence that could weaken or destroy the government’s case.