Fruit of the Poisonous Tree | Parallel Constructions used to Circumvent US Law
Intelligence Agencies and Law Enforcement Using Parallel Constructions Circumventing Law and Undermining Constitutional Rights.
Simply put, a parallel construction is a tactic used to hide the fact that evidence was obtained illegally in order to get a conviction by claiming a secondary legal method was used instead.
Human Rights Watch (HRW) has been investigating the use of parallel constructions by law enforcement and intelligence agencies for more than a year. Here's how the organization explains the unlawful techniques.
Through a practice known as “parallel construction,” an official who wishes to keep an investigative activity hidden from courts and defendants—and ultimately from the public—can simply go through the motions of re-discovering evidence in some other way. For example, if the government learned of a suspected immigration-related offense by a person in Dallas, Texas, through a surveillance program it wished to keep secret, it could ask a Dallas police officer to follow the person’s car until she committed a traffic violation, then pull her over and start questioning her—and later pretend this traffic stop was how the investigation in her case started.
For example, if the government learned of a piece of information by intercepting and reading an e-mail, then sent a confidential human informant to the e-mail sender’s door to try to get him or her to repeat the same information so the government would not have to reveal the interception of the message, this would constitute parallel construction in accordance with our understanding. Another hypothetical example—drawn from allegations made by the defense in a federal case in New Mexico[1]—would be a government agent’s secret search of a piece of luggage, followed by a deliberate effort to persuade the luggage’s owner to consent to a search of the bag just as if the first search (the one the government does not wish to admit having done) had never happened.
This highly unethical and unsavory practice is on the rise across the United States and it undermines the constitutional rights of those who are targeted by these strategies. Mounting evidence suggests that the federal government is concealing these tactics from the general public.
A major issue is that individuals who are arrested, charged and/or imprisoned will not even be aware of potential illegal methods of evidence gathering used in the case against them.
Parallel constructions appear to be in direct conflict with the Fourth Amendment of the US constitution which is suppose to protect the population against abusive searches and seizures by the authorities.
In creating fictions to keep potentially questionable investigative activities out of sight, the government also avoids an important deterrent to official misconduct. When law enforcement or intelligence agencies break the law, judges typically prohibit prosecutors from introducing evidence that was obtained as a result of those illegal operations. This is one of the main incentives agents have to respect rights. Parallel construction removes this incentive by deliberately rendering those agents’ actions invisible to courts and defendants, and the resulting lack of accountability risks turning constitutional rights into little more than words on paper.
The most disturbing aspect is that these tactics will be utilized to conceal illegal surveillance programs of federal intelligence agencies and law enforcement officials. Furthermore, judges will be in the dark as to whether or not agents of the state are upholding the Constitution and the rights of the citizenry.
Parallel constructions are ways in which government agents can substantiate how an investigation was initiated in the first place without disclosing the true nature of the original evidence gathering.
According to TechDirt, parallel constructions are commonly used after alphabet agencies such as the NSA pass on surveillance information to their counterparts, like the Drug Enforcement Agency (DEA).
...the NSA and other surveillance organizations would share info with the DEA and other law enforcement agencies, but then tell them to reconstruct the evidence via a process called "parallel construction," so that the surveillance would not then be discussed in court.
The recent HRW investigation that included interviews, court records, documents disclosed by the government, and media reports from April 2016 to October 2017 concluded that:
• Is a technique that, the evidence suggests, is employed frequently and possibly even daily
• Has roots in strained and untested government interpretations of US Supreme Court and other cases—cases that in fact have never explicitly provided license for officials to deliberately avoid telling defendants the truth about investigative methods in order to conceal practices that might raise legal concerns
• May be employed by a range of federal agencies responsible for investigating suspected violations of criminal and immigration law
• In particular, is employed by a part of the Drug Enforcement Administration (“DEA”) known as the Special Operations Division (“SOD”), at least part of which has been nicknamed “the Dark Side” and which the evidence suggests is responsible for passing tips to various law enforcement bodies with the expectation that those tips will not be revealed in court
• Regularly relies on pretextual stops and searches of vehicles—an exercise of police powers that is sometimes known as a “wall stop” or “whisper stop” and that risks becoming unlawfully coercive
• May also rely on other tactics, such as attempts to find incriminating evidence by obtaining a suspect’s consent to a search of his or her person or belongings, requests for call records (which do not require a warrant under US law), closed proceedings under the Classified Information Procedures Act, or the use of less-controversial intelligence surveillance methods to conceal more controversial forms
• Is at least sometimes used in investigations involving relatively minor offenses
• Prevents courts from providing oversight over surveillance and other investigative methods, and therefore from deterring law enforcement misconduct
• Is facilitated by prosecution tactics for resisting defense attorneys’ efforts to find out how the cases against their clients truly originated, including prosecution claims that agencies such as the NSA are not part of the prosecution “team” and that prosecutors therefore are not required to find out if such agencies were involved in the investigation.
Fruit of the Poisonous Tree
Critics of the use of these unlawful tactics point to what is known in legal doctrine as The Fruit of the Poisonous Tree
The "fruit of the poisonous tree" doctrine is an offspring of the exclusionary rule. The exclusionary rule mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial. Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered in an illegal arrest, unreasonable search, or coercive interrogation. Like the exclusionary rule, the fruit of the poisonous tree doctrine was established primarily to deter law enforcement from violating rights against unreasonable searches and seizures.
The name fruit of the poisonous tree is thus a metaphor: the poisonous tree is evidence seized in an illegal arrest, search, or interrogation by law enforcement. The fruit of this poisonous tree is evidence later discovered because of knowledge gained from the first illegal search, arrest, or interrogation. The poisonous tree and the fruit are both excluded from a criminal trial.
Once again, the underlying issue here is that those targeted by intelligence agencies and law enforcement are blind to the fact that evidence was collected by unlawful and immoral methods and therefore defendants cannot properly defend themselves in a court of law.
Clearly, these types of cases are fruit of the poisonous tree while the purpose of the doctrine is suppose to deter law enforcement officials from breaking the law in the first place. Yet, if there's no way to know/discover how the evidence was obtained, there's very little that can be done to compel the prosecution to disclose if illegal methods were employed.
In a court of law, if the defense suspects illegal evidence gathering was used the prosecution can simply argue that the claim is purely 'speculative'. Another common argument may be that the prosecution cannot disclose the nature of secret government operations on national security grounds. Certainly, this places a enormous handicap on any defendant who may never know that their constitutional and human rights have been violated.
As we've all become all too aware that mass surveillance has become ubiquitous throughout modern society. People now run the risk of being targeted for their political beliefs, have evidence illegally acquired about them, have a parallel construction created to conceal the tactics and go to trial without knowing that their rights have been severely infringed upon.
In conclusion, I think that it's worthwhile for people to have a closer look at Human Rights Watch's report on parallel constructions as it is a very thorough investigation of the matter.
Evidence not that we needed it that governments have completely embraced the fascist model and intend to take it to a level.
They'll keep getting worse and worse as society descends into economic misery over the coming years. It's kinda sad but it's goes to show the importance of online anonymity when airing your views.
What concerns me the most is that so many folks say "If your not a criminal you have nothing to worry about" FOOLS!
It depends on your definition of a criminal, and that they can change anytime they like.
Cheers for the info V, great work.
Haha, that's a great point. They're just going to become more brazen with the dismantling of our human rights. They're barely concealing it at the moment.
I 100% agree with you on the "Nothing to hide" argument and you've identified exactly why it's such a paper thin argument. Laws can be rushed in to place after an 'event' (ex: Patriot Act) that severely infringe on the rights of citizens.
Well said TP!
The 'nothing to hide' argument is a good example of brainwashing the masses in how to respond. They've been programmed to repeat what they have heard without understanding the ramifications of what they are saying.
You've both raised very good points!
The same people who parrot the "If your not a criminal you have nothing to worry about" argument also spend all day telling everyone that the President is a fascistic, unconstitutional racist who will cause a nuclear holocaust.
nice post. i like you post bro
Good post, as always @v4vapid. Slightly off subject but semi-related, I wanted to turn you onto the work of @PatrickLancaster (if you haven't seen it yet). He is under assault from pro Kiev trolls on Steemit for trying to get the truth out about the Ukraine war. Kind regards.
The real question is what can be done about it?
I am not sure online anonymity is even possible with all the data being collected by social media companies like Twitter (see watch Project Veritas video) , Google, and Facebook.
Even if it is possible - it should not be required. It is addressing the symptom, not the problem.
How do we fix the problem?
I believe my use of pseudonymous means of posting throughout my life has not only kept me alive, but my children.
John Yee, legal counsel to Bush lite, wrote that the President had the lawful authority to crush the testicles of a child to interrogate the parents. Seymour Hersch, who broke the Abu Ghraib story, said 'The worst thing was the screams of the children being raped while their parents were being interrogated.' He was privy to much more information that was prevented from becoming public by the criminal conspirators that committed such predations in their quest for power.
When such criminal means are used to rule, there can be no justice, only power.
Redundant layers of pseudonymity don't hide me from evil racketeers, they hide the testicles of my children.
Yep, they unleashed the forces of evil when they enabled the patriot act. As soon as they run out of enemies they'll turn on their own, I wouldn't want to be an American citizen when that happens and it WILL happen.
Himmler and Heydrich would thrive perfectly well in the system that have and continue to set up, it's horrendous.
These principles aren't limited to the US. The methods and powers are ubiquitous, wherever blackmail and surveillance are possible - and I submit there is no place they are not - this is happening.
This is globalism.
We can't vote with our feet. We must vote with our wallets, by funding mechanisms that make it impossible to conduct secret surveillance. The only thing necessary to end all this abuse is to make it public.
Blockchain FTW!
The powerful can make interpretation of anything in a way that supports their benefits. I'm not sure about the first world countries but law here in third world countries means nothing but a web of a spider that can't be a hindrance in the way of something/someone really powerful but it can really capture the weak. Amazing isn't it?
Thanks for the comment, be careful not to confuse parallel constructions in writing with law enforcement 'parallel constructions' - that being said, there are some comparisons that can be made.
With a law enforcement PC, only those that have obtained the evidence illegally will know it's happening. The police force making the arrest (or traffic stop) that leads to the uncovering of the evidence that was originally illegally obtained may have No Idea, they're participating in a more complex targeting of an individual.
Hope that makes sense.
Well, now I'm more confused. :)
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Hey @v4vapid
You do bring to light some interesting and quite disturbing information in your blogs. Fair play.
Sometimes I get that bitter taste in my mouth reading about these acts by 'the law' and I have little to say - it's all more of a sigh of disgust.
On the bright side, it's always worth a look through your comments, and after the learned replies, you do have some absolute comedy gold down in the gutter.
Cheers :)
LOL, yeah the first 10 or so comments I get these days are completely meaningless, some hilariously off topic.
Epic!
Entrapment is another such grey area, it's regularly used but they simply change some of the wording around in order to be able to use it within a prosecution. The entire law system is being twisted and perverted in order to accommodate the governments increasing lust for control and subjugation. Equally Legalese is much like a technological backdoor, except it's a backdoor into subverting the rule of law. The correct manipuation of terminology, use of words are often all that's needed to seal a prosecution/persecution that would otherwise be thrown out of the court system.
Certainly legality and morality parted company a long time ago! Great work as always @v4vapid & congratulations on your (70) reputation it's very well deserved!! Resteemed.
Excellent read, @v4vapid. I would only object the last paragraph — you really can't expect anything from the Human Rights Watch. If they have “discovered” so much, then the situation is probably much worse.
Very True, the real story is probably much much worse as they probably have even more nefarious tactics.
You just pulled together another fascinating article, resteemed as usual, may I ask you if you live in the USA? as the reach there from government is almost as bad as the UK, you may think the UK is not that bad, though last year one ex CIA operative gave a speech in the UK stating it was the most over reaching surveilled country "IN THE WORLD" the UK he was talking about.
Parallel construction came to widespread public notice after the Snowden disclosures, which showed how the NSA was (for example) secretly wiretapping all the information transiting between Google's data centers, then telling the FBI what information to go and get a warrant for.
parallel construction looks at the way that the war on drugs supercharged the practice, with the DEA leading the charge to cover up illegal spying with bizarre antics like fake car-thefts that let agents search the car after it was recovered.
Indeed, it is a long-standing U.S. policy @v4vapid
Most people will not realize this has been longstanding policy undertaken practically ubiquitously by LEA's. I have personally seen how this can be used to affect people outside of formal charges and courts.
Surveillance potentiates far more than parallel constructions used against defendants. Blackmail, insider trading, and abuses too prolific to list are amongst the various means covert surveillance potentiates spies to profit from.
The fact that virtually all convictions result now from plea bargains is what has revealed parallel construction to be a common tactic, even a foundational strategy, of the penal industrial complex. When defendants are faced with a case and offered a deal, the odds so strongly favor acceptance of plea bargains, that often strong cases aren't even built. When defendants then refuse to accept plea bargains, prosecutors are sometimes caught flat-footed, and fabricate flimsy premises to purport constructions that aren't based on criminal surveillance.
These are quite rare occurrences, since virtually all defendants accept plea bargains, and evidence is never presented outside a grand jury, where prosecutors face no evidence hurdles, or defense of any kind.
When the use of criminally obtained evidence isn't used for prosecutions, for example to blackmail politicians, it is yet more rarely revealed. This may be the strongest reason to oppose secret surveillance, as it potentiates and perpetuates crooked politics, perhaps the worst scourge of free peoples.
The Hastert case is a good example of this very effect. He was known to be a predatory child rapist to various agencies that should have ended his vicious crimes long before he ever moved past raping his students when he was a teacher. The 'capture' of Hastert's political acts through blackmail instead created his candidacy, by generating support from those parties that had him to rights as a child rapist.
This explains politics generally, from HOA's to the UN.
As evil as parallel construction is, blackmail based governance is far more pernicious, harmful, and profitable for racketeers. It is hard to even quantify how much insider trading might result from such criminal surveillance. Just try to imagine how many profitable ways such surveillance could be used.
We need to end government secrecy. The USG claims to effect it's acts by applying the sovereign authority of it's citizens, but to keep secret from them what it knows, what it does, and how it does so. Make all surveillance just as public as our transactions on the Steem blockchain, and all this criminal activity loses it's power.
Government can have no just power not native to a free person. Neither can there be any justification for keeping the execution of your power secret from you. It is our power, our secrets, and our lives. It's time it was in our possession.
Thanks!
It's scary how long and strong the governments arms can be when they need to be. One of the most ironic phrases that keeps being spewed over the airwaves is that America is the leader of the free world. In what part of America are people free?
Basically how I see it is, if you DO anything or ARE anything or BELIEVE anything that the government deems dangerous to their position atop the thrown, they have the means to silence you. I don't think there is any person that is out of their reach. It is a scary world we live in.
The most ironic part is that many Americans have been convinced that "Rocket boy" and the Korean peninsula is the most dangerous place on earth, yet I feel much safer living in South Korea than I think I ever would living stateside. Where you walk down the street in fear that your neighbor may be holding a weapon, or that if your skin is the wrong shade you might be mistaken as a terrorist. Where even if you haven't done anything wrong, agents of the government have many means at their disposal to paint the picture otherwise. Scary world we are living in.
Once again goes to show that:
Every single batshit crazy conspiracy theory fever, dreamt up in a cold sweat, if one simply waits long enough, manifests in the world around us.
My outrage turns to shock, my shock turns to surprise, and as time goes on my surprise turns into a hesitant disdain for the oncoming wave. Ignorance is blissful slaughter, and knowledge is like novocaine.