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How NSA Can Secretly Aid Criminal Cases

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Cross-posted from Consortium News

Former FBI Director Robert Mueller.
Former FBI Director Robert Mueller.
(image by
Consortium News)

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.

Learning Curve

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.

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Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in inner-city Washington. He was an Army infantry/intelligence officer and then a CIA analyst for 27 years, and is now on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS). His (more...)
 
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The thing about metadata is, it's data about data,... by Gardner Roberts on Friday, Jun 13, 2014 at 7:53:38 AM
If it was enforced that any government official th... by Samson on Friday, Jun 13, 2014 at 6:19:48 PM
All three branches of our gov corrupted by NSA ... by Pal Palsimon on Saturday, Jun 14, 2014 at 1:09:17 AM