The United States owes its existence as an independent nation partly to objections over excessive searches by British colonial authorities. Yet today, it is possible for an individual to go to prison as a result of evidence the U.S. government has deliberately kept hidden and that it may have gathered illegally.
Human Rights Watch just published an investigative report documenting parallel construction, a practice in which government agents create an alternative explanation for how evidence in a criminal investigation was found. It does this to avoid disclosing the original sources or methods in open court.
The result is that defense attorneys are unable to discover how evidence was collected and challenge it, and judges are unable to evaluate investigative methods that may have violated fundamental rights. Evidence described in the report suggests that agents may be using this concealment technique regularly and nationwide.
Of immediate relevance, parallel construction could be preventing Congress and the public from understanding the ways Section 702 of the Foreign Intelligence Surveillance Act (FISA), a controversial surveillance law that is currently the subject of a pitched battle over its renewal, affects people in the United States.
The “fruit of the poisonous tree” doctrine generally requires judges to bar prosecutors from introducing evidence that was obtained illegally. However, the government apparently justifies parallel construction based on exceptions to this doctrine.
For example, the U.S. Supreme Court has found that prosecutors may still introduce such evidence if they had a “genuinely independent” source for it. Human Rights Watch found that the government may be secretly deciding for itself what constitutes an “independent” source—cutting judges, whose role it is to ensure the fairness of trials, out of the picture.
One method the federal government may use to conceal sources entails asking local police to find their own reasons to pull over and search a vehicle for evidence of a criminal offense. We cited numerous avowed instances of such traffic stops, which are known in law enforcement circles as “wall” or “whisper” stops. The report provides links to leaked “be on the lookout” orders that explicitly instruct officers to “develop [their] own probable cause” for stopping and searching vehicles.
We also pointed to the possibility that the government is using orders issued under FISA, or closed proceedings under the Classified Information Procedures Act, to prevent the disclosure of activities or programs. Defense attorneys have had little success in finding out whether these or other techniques were used to conceal investigative methods in their clients’ cases.
While we were able to offer the most thorough portrayal of parallel construction to date, the report should inspire further questions. For example, we provided details about the Drug Enforcement Administration’s (DEA’s) Special Operations Division, which facilitates the sharing of intelligence with law enforcement agents and at least part of which has been nicknamed “the Dark Side.”
But a pair of e-mails from the surveillance software vendor Hacking Team that were leaked to WikiLeaks in 2015 point to the possibility that the Federal Bureau of Investigation (FBI) also contains an entity known as the “Dark Side.” (In the e-mails to which links are provided here, “Phoebe” is Hacking Team’s code name for the FBI, and “Charlie” is apparently a reference to an individual with an FBI e-mail address.)
The report also identifies “wall stops” requested by agencies including the FBI, Immigration and Customs Enforcement, and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Congress should demand—and the executive branch should provide—complete information about which agencies are engaging in parallel construction, and how. The public needs to know what is being done in its name, and everyone needs to be able to have confidence that the U.S. criminal justice system is respecting rights.
Numerous questions also remain about the DEA Special Operations Division’s “Dark Side.” A former federal prosecutor told us, “The Dark Side does stuff that doesn’t come to the public’s attention.” Another former federal prosecutor who has worked in the division said that members “do everything legally,” but suggested that they are operating under laws that confer vast powers. Such statements suggest a need for much greater transparency about the division’s activities and how they affect rights.
One of the most troubling aspects of parallel construction is that government agents could use it to conceal virtually any behavior, from a potentially unconstitutional National Security Agency surveillance program to untested new biometric technologies, or even run-of-the-mill illegal searches of luggage.
Public, transparent, fair trials are essential to human rights and democracy, and the rights of criminal defendants lie at the heart of the U.S. Constitution. Our findings should inspire further investigations at both the national and local levels—and a ban on the practice of deliberately hiding the true sources of evidence from people facing the loss of their liberty.
Sarah St.Vincent is a researcher on surveillance, national security and domestic law enforcement at Human Rights Watch.
