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Hullabaloo


Wednesday, June 04, 2014

 
RIP Fourth Amendment

by digby

"Parallel construction" means never having to say you're sorry:
We’ve known for some time that police departments sometimes keep secret their surveillance methods, even from courts and defendants in criminal trials. But thanks to the ACLU, we now have a crystal clear picture of just how often one police department employs "parallel construction" to hide from the public and sometimes even criminal defendants where evidence used against them really comes from.

Newly disclosed court documents provide new insight into the domestic use of one particularly creepy surveillance technology: stingray cell phone sniffers. The devices act like cell phone towers, forcing all phones within range to connect to them instead of to the phone company’s towers, enabling law enforcement to track people’s locations and even intercept their cell phone traffic. Police departments, the Department of Justice, and the corporation that manufactures the stingray, Harris Corporation, have gone to great lengths to keep secret how often and in what ways law enforcement has been using the tool domestically.

Now public court testimony from a Tallahassee police officer assigned to the Tactical Operations Unit reveals that his department has been using the invasive tool since March 2007, and employing parallel construction to cover his tracks. Over approximately three years, the detective personally used the stingray device—which he claims his department does not own—over 200 times. But according to his testimony, despite having used the stingray over 200 times in three years, police in Tallahassee have not once used stingray-derived information to establish probable cause for purposes of obtaining a search warrant.
This concept was derived from the notion that in order to protect confidential informants, police agencies could create a different provenance for probable cause. I don't pretend to understand why the courts have allowed this to run amock but they have. Basically law enforcement is now doing whatever it wants to track people's every move and then creating a false record to prove probable cause, of which even the court is unaware. It's a neat trick.  Like this one:
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. 
"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.
"It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."[...]The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred. 
Today, much of the SOD's work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked "Law Enforcement Sensitive," a government categorization that is meant to keep them confidential. 
"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."
There are many ways to circumvent the constitution if someone is clever enough to create them ...
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