FBI and DEA Under Review For Misuse of NSA Mass Surveillance Data

Patrick O'Neill writes: The FBI and DEA were among the agencies fed information from an NSA surveillance program described as "staggering" by one judge who helped strike the program down. Now the two agencies are under review by the Justice Department for the use of parallel construction as well as looking into the specifics and results of cases originating from NSA tips. (Here's some more on the practice of parallel construction in this context.)

Comments

My money is on....

[TheCarp]

After investigating themselves, no wrongdoing will be found.

I never find wrongdoing when I investigate myself. At least not anything that needs to be discussed in public, just a little internal housekeeping, you know, minor discipline issues, nothing to make a federal case over.

One thing you can be certain of: This will lead to exactly 0 prosecutions, no matter how much abuse is found.

Re:My money is on....

[93 Escort Wagon]

I disagree. I think wrongdoing will be found... a few minor, isolated cases. That will give the government a chance to point out how the abuses are "minor" when compared to the "proven benefits" of the Surveillance State, as well a chance to talk about how they are "constantly improving" an already careful program so it's even better about not collecting any important information from "ordinary, law-abiding citizens"
M

Re:My money is on....

[swb]

Token wrongdoing will be found.

A couple of people who were on their way out anyway will be offered off-the-books compensation and a promise of no consequences to be tainted by this.

A couple of people they want to get rid of outright will get pinned with the most serious charges, but to protect the organization they will be allowed to resign quietly without any prosecution.

In the end, it will be the same as no wrongdoing being found but with a little "accountability theater" to keep critics quiet.

Re:My money is on....

[bigpat]

Worse. It will be seen as a loophole in the law that only terrorists can be found out by indiscriminate mass surveillance. If terrorists, then why not... (fill in the blank terrible crime here). Then the law will be expanded to say that any felony crime inadvertently uncovered during mass surveillance is fair game.

On the one hand, they are right... If you can be allowed to search without a warrant for terrorists then why not other criminals? If you find out someone went on a murderous rampage for personal reasons are you any less ethically obligated to try and stop them than if they have terrorist motives? No if it is constitutional, then you can't simply apply the standard to certain crimes.

The answer is that government shouldn't be allowed to violate the constitution and seizing business records without a warrant is a clear violation of the 4th amendment... that applies to terrorism cases and everything else.

Re:My money is on....

[Impy the Impiuos Imp]

If the NSA's intrusive powers, constitutionality aside, are all about terrorists, what in God's name are they doing passing normal crime info on to the FBI and DEA?

I don't think this revealation is all that secret. I recall some extra special terrorist power being granted to the FBI late Clinton era, and they immediately used it to bust drug people. They didn't even bother with the sophistry that drug distribution is a kind of terrorism.

No, when asked directly, they said, "Well, I know what we promised to use it only for terrorists, but the law doesn't actually state terrorist investigations only, so tuff." They lied to get it through Congress, then immediately began misusing it in a way only a lawyer or someone planning to throw a coup would find reasonable.

Re:My money is on....

[bigpat]

This is an equivocation fallacy. The arguement to do this for terrorism is because its not a crime, but an act of war, the terrorists aren't merely criminals, but foreign combatants.

The government isn't claiming merely the necessity for mass surveillance in the face of imminent danger from terrorists, they are claiming a right to perform mass surveillance as a function of law and the ability to use evidence gained from the fruit of mass surveillance to prosecute criminal cases against people conspiring with terrorists. Either mass surveillance is constitutional as a tool against crime or it isn't. There is no false argument there. Evidence gained through mass surveillance and the fruit of mass surveillance should be inadmissible in ANY criminal cases.

Either treat surveillance without a warrant as something that is inadmissible in court in all cases or forget the 4th amendment.

lies, damn lies, and sworn testimony

[Pseudonymous Powers]

The basic problem here is that "parallel construction" equals "lying under oath". Once judges start accepting outright lies, it rots the (already slightly decayed) system right down to the core.

It's like when they're trying to indoctrinate you to be a terrorist, and they make you perform some unspeakably abominable act as your initiation. After that, you won't question your decision to join this iffy organization, because that would mean that you did this unforgivable thing, not for the greater good, but just because a bunch of assholes told you to. Which makes you yourself not only an asshole but also an idiot.

So these judges will not only accept lies as testimony, they will defend the practice to the death, to anyone who raises the very obvious point that you shouldn't base your system of justice on blatant lies. Otherwise they're assholes and idiots, and nobody wants to admit that they're an idiot asshole.

Re:lies, damn lies, and sworn testimony

[Anonymous Coward]

There's no reach with the definition he used.

The police find the information by way of violating the law.
Having uncovered the information in question, they concoct some *other* way that they can or could have discovered it.
In court, under oath, they claim to have found the information this *other* way. That's the lie.

"Parallel construction" is a known violation of the defendant's rights, cloaked in a lie to keep said violation secret.

Re:lies, damn lies, and sworn testimony

[gweihir]

The second problem is that there is a good reason not to have secret agencies feed law enforcement. The thing is, secret agencies are not bound by law in how they obtain their information, so nobody has any protection against them or any recourse under the law. Having them give information to law enforcement completely negates the essential checks and balances any working legal system has. Hence the DEA and FBI had to commit perjury on a mass-scale in order to use that information. That they were willing to do so already demonstrates the problem very clearly.

To make it amply clear: If secret agencies feed law enforcement in your state, then you life in a police state or worse.

Re:lies, damn lies, and sworn testimony

[kilfarsnar]

The idea is not to admit the fruits of warrantless searches and coerced confessions, but to avoid suppressing valid evidence for pointless technical reasons.

The technical reasons are not pointless. They are there to keep Law Enforcement honest. It seems they are not entirely successful on that front.

If they discover valid evidence by violating your rights, you don't really have rights. As always, the ends don't justify the means. Police and prosecutors bitch about technicalities because they don't care about your rights; they only care about convicting you, guilty or not. It is entirely proper that a guilty person go free on a technicality. It shows that even guilty people have rights, as it should be.

Re:lies, damn lies, and sworn testimony

[kilfarsnar]

To make it amply clear: If secret agencies feed law enforcement in your state, then you life in a police state or worse.

I would argue that the US is already a police state. It's just subtle enough (and portrayed in the Media in such a way) that most people don't notice.

Let's be clear here ...

[gstoddart]

Parallel construction is effectively perjury at a huge scale.

What it's doing is giving them access to information they either aren't supposed to have, or are unwilling to admit to having. And then they come up with a carefully crafted lie about how they might have found this information from another source.

This bit of creative writing has the effect of denying you the ability to see the evidence against you, and know where it comes from.

It allows them to operate with impunity, while essentially denying you a fair trial ... because the bullshit story they make up about how they heard from a guy who heard it form a guy is exactly that: bullshit.

It's government agencies who are bypassing decades of court decisions about proper procedures and rules of evidence, and using secret laws and bold-faced lies to be able to trump up whatever charges they have, with information obtained through questionable means, and the lying to suppress the real source of the information to cheat the system and deny you the ability to know how they really got it.

This is as bad as any Soviet era secret police ever was, precisely because it bypasses all legal safeguards, and totally ignores the law as it pertains to knowing the evidence against you and how it is obtained.

Any police agency doing this is, in my opinion, committing a crime. There's no other way to see this other than these organizations lying to courts, and providing local police with a fucking manual to also lie to the courts.

Give us your fucking papers, comrade.

Re:Let's be clear here ...

[DarkOx]

I don't disagree with you. If we are being intellectually honest then your argument is perfectly correct. If we care to do the right thing then your argument is perfectly correct, IMHO.

The problem is you had better be prepared for disappointment. The Feds abhor intellectual honesty "The law says we can't give aide to a country after a coup but it does not say we have to make the determination if a coup occurred." -- This is how they think. Any normal person I would consider having any sort of relationship other than strictly adversarial would recognize that as total bullshit, and that obviously laws or any sort of agreement do not need to contain a disclaimer that specifically states "you are not entitled to be willfully ignorant on matters relating or to ignore reality"

The defense of parallel construction will be that they don't lie about, but rather evade the question.

Defense Attorney: "How did you come to learn my client was in possession of $controlledSubstance"
DEA Agent: "Well we might have discovered it during a traffic stop."

They are going to argue that its not 'fruit of poison' as long as they reasonably could found it thru normal means.

Re:Let's be clear here ...

[gstoddart]

They are going to argue that its not 'fruit of poison' as long as they reasonably could found it thru normal means.

See, the problem with that is it ignores how they actually got it.

When you have information you're not supposed to have, and you can look back and then put together a bullshit argument about how you could have gotten it, it has nothing at all to do with reality.

It is the fruit of the poison tree, because it was obtained without probable cause, and because the origins of it are being hidden from the accused.

It's perjury, plain and simple. And if law enforcement is being encouraged to commit perjury, that pretty much means the justice system is completely fucked.

It's taking information you can't justify having, and then effectively framing someone you believe is guilty but couldn't prove to a standard the courts would reject by re-building your evidence retroactively to suit your story.

If the cops are doing that, they should be imprisoned, or shot on sight.

Re:Let's be clear here ...

[AHuxley]

Yes in the long term US intelligence service aspect seems to have been pulled into very simple domestic court issues.
The GCHQ always seemed to have a deeper understanding of never going near courts or short term political requests.
Early in the 1920-30's the UK found a fast way into Soviet embassy codes, one about links deep in the UK, staff, unions, cash. It was too good to be true but the UK had to spread the results of the code work as it was just such a perfect document as a domestic political win. Codes where changed and Russia understood the needs of fast crypto vs secure crypto. Code breaking and results much more hidden from that point on.
The US seemed to have demand very public results from its very secret clandestine gathering systems vs just collect all and sort. No courts, news or press at any cost, no legal staff, drop convictions in open courts if needed. The use of the RUC Special Branch and CID are also telling in how the UK offered its most on time and vital gathered intelligence. The UK had a very clear understanding of who was doing criminal investigations and who was an intelligence service.
If the UK needed crypto help in public, police like units thats could be seen in public could be presented to the secure or public legal system. Government Technical Assistance Centre (~ a Home Office unit), National Technical Assistance Centre. That would be very court friendly for early emails and computer hard drives that where decrypted quickly and legal teams, the press could see. No unsafe convictions or later questions about the speed of decryption of advanced trusted computer encryption software :)
The US seems to have hoped that that its courts, lawyers, the press would always be unable to trace back basic domestic signals intelligence use for a few more decades?

Unchecked power will ALWAYS be abused

[NotDrWho]

There was a great episode of the old Penn & Teller show "Bullshit!" that dealt with this. They hired a bunch of random people as security monitors, gave them access to surveillance cameras, and told them not to use the cameras to spy on people's private lives (only on the fake security perimeter). Sure enough, 90% of them used the cameras to spy on people's personal shit.

Re:Unchecked power will ALWAYS be abused

[TheCarp]

This. When I worked in hospital IT we were warned several times, the single most common reason for anyone in the hospital to be fired, is inappropriate records access. They had implemented auditing years ago. In fact, a decade before I worked at the hospital, my mother did, and there was a huge scandal involving medical records and a famous patient.

By the time I left, they were implementing real time flagging. The system was able to flag on all sorts of things, accessing records within your family, accessing records of people who live near you, all things people actually do with alarming regularity when given access to records.

The old adage is "power corrupts" and it is apt. People will misuse power given to them. Will all of them all the time? No. However, enough will and its impossible to say who will and who wont because almost every single one will given the right motivation or excuse.

Watch what happens in a month -

[pecosdave]

this story is forgotten, swept under the rug, no longer referenced.

Just as suddenly as it appeared in the news, it disappears from the news and our short memories caused by modern low attention-span media causes us to forget.

Then the parallel construction and misuse of data will continue.

Just like everyone has forgotten about the persecution of real reporters that began in 08 and was heavily reported on for a short time. We still have mainstream news that's a result of what happened back then, but no mention of that fact.

Just like everyone forgets about the global cooling scare that was a big deal in the 70's and still covered in the 80's.

Just like everyone forgets about the various legal entities that have found "the smoking gun" and plan to go after the administration or some other powerful organization, never to hear anything more about it past the initial breaking news stories.

This one will fall off the earth too.

Re:SERIAL construction aka perjury

[king neckbeard]

They call it parallel construction because they want to give the impression that the two evidence chains do not intersect.