Since the 1970s, spy agencies have been feeding police forces tips about who to arrest and where to look for evidence, despite the illegality of their practicing surveillance within the USA.
This illegality has meant that law enforcement agencies had to find a way to disguise where their tips were coming from, and so "parallel construction" (previously) was born: a spy agency tips off a police force about something, then the cops invent a pretense for "discovering" the same fact.
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.
A new Human Rights Watch report on 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.
The report primarily focuses on the present day, though, using rigorous methodologies to uncover the full, astounding scope of these illegal practices.
To eliminate the human rights violations that parallel construction entails, Human Rights Watch recommends that Congress address th e issue directly through legislation. Specifically, we recommend that the body adopt laws to require the disclosure to criminal defendants of complete information about the origins of the investigations in their cases, with special procedures as necessary to address classified information or information whose disclosure may jeopardize the lives or safety of identifiable human informants. Such procedures should be conducted by judges and should ensure that defense counsel have sufficient access to the information to challenge potentially unlawful activity. They should prohibit the sanitization of information in a manner that precludes constitutional or other challenges to the legality of a government activity that led to the identification of information or evidence.
Congress should also adopt legislation requiring that all executive branch agencies be treated as part of the prosecution for the purposes of obligations to disclose exculpatory information. Additionally, it should evaluate the judicially developed doctrines (such as applications of the “independent source” doctrine, interpretations of Whren, and the doctrine of collective knowledge) that may facilitate law enforcement’s use of searches and seizures for parallel construction purposes an d consider imposing restrictions accordingly. To address the possibility that parallel construction is used to conceal potentially unconstitutional surveillance, we recommend that Congress adopt legislation strictly requiring the executive branch to notify defendants in all criminal cases of any employment of investigative techniques involving the surveillance of communications or metadata, or the compilation or monitoring of other personal data such as biometric data.
Congress should also adopt similar requirements for other proceedings in which individuals’ rights are adjudicated (such as immigration proceedings). Such legislation should impose requirements on prosecutors to determine whether such techniques were employed. In general, Congress should exercise stronger oversight over surveillance and other forms of data-gathering that take place under intelligence authorities.
Dark Side: Secret Origins of Evidence in US Criminal Cases [Human Rights Watch]
Welcome to Law Enforcement’s “Dark Side”: Secret Evidence, Illegal Searches, and Dubious Traffic Stops [Trevor Aaronson/The Intercept]