Just as the newest bombshell that the National Security Agency has been leaking information to the Drug Enforcement Agency (NSA) through a secret program called Parallel Construction was about to break on Monday, the Obama Administration tried to divert attention by announcing early Sunday morning that “chatter” had been intercepted by the NSA that the al Qaeda terrorist network was plotting to attack on a U.S. embassy and a transportation asset this week. But the uncovering of Parallel Construction’s strategy of consciously lying to defense attorneys, prosecutors and judges is sure to result in a get-out-of-jail-free-card for some of America’s worst drug lords and criminals.
Islamic militants have always used Ramadan, the 30 day worldwide Muslim observance of prayers and fasting, as a period to rest and retrofit their warriors. The U.S. and other Jihadist targets were already going on high alert as Ramadan holidays this year end on Wednesday, August 7th. Making a Sunday emergency public alert seemed like over-kill.
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But the Administration knew that the next day, Reuter’s News Agency was releasing a report that the U.S. Drug Enforcement Administration (DEA) has been relying on NSA domestic intelligence intercepts through an inter-agency agreement called Parallel Construction as a basis to launch criminal investigations of Americans. As fugitive whistleblower Edward Snowden outed, there is everything illegal about the NSA sharing of warrantless information with third parties not involved in national security issues.
Documents reviewed by Reuters News Agency demonstrate that law enforcement agents who have used Parallel Construction to make arrests, were directed by the NSA to conceal from defense lawyers, and sometimes prosecutors and judges, how the information was obtained. Federal agents were trained on how to “recreate” the investigative trail to effectively cover up where the surveillance information originated. Such fraudulent actions are a clear violation of the Fourth and Sixth Amendment to the United States Constitution and a valid basis for convicts to be freed through appeal.
The American system of “Jurisprudence” is based on the right to confront witnesses and access to discovery of “exculpatory evidence” that would reveal entrapment, mistakes or biased witnesses. The intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding is referred to as spoliation.
There are two possible consequences for spoliation under law. In jurisdictions where the intentional act of spoliation is a criminal offence by statute, it may result in fines and incarceration for the parties who engaged in the spoliation. In jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a “spoliation inference.” The spoliation inference is a negative evidentiary inference that a “finder of fact” can draw from a party’s destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding that the destroyed evidence creates a “consciousness of guilt” or other motivation to avoid the disclosing the evidence.
Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011 responded to Reuters questions on the legality of Parallel Construction data sharing: “I have never heard of anything like this at all“. She had assumed that the National Security Agency had limited its collecting of international phone records and computer activities to stop terrorists, not nab domestic criminals. “It is one thing to create special rules for national security, ordinary crime is entirely different. It sounds like they are phonying up investigations.”
The DEA in 1994 set a secret unit named “Special Operations Division” (SOD) that includes the FBI, CIA, NSA, Internal Revenue Service, Department of Homeland Security and a dozen other agencies to combat Columbian and Mexican drug cartel activities. But as the NSA began collecting metadata on all Americans in the last few years without court search warrants, SOD grew from a few to hundreds of agents in a secret location in Virginia that now are data mining domestic electronic communications.
SOD agents contact state police who are told to find an excuse to pull over a certain vehicle at a certain time, and then have a drug dog search it. After an arrest was made, police and federal agents were instructed by DEA to engage in the “parallel construction” lying to conceal the source of the tip-off. Former DEA agent, Finn Selander described parallel construction as: “you work it backwards to make it clean.”
Now that Parallel Construction lawlessness has been exposed, defense attorneys will soon be appealing to the courts for a “get-out-of-jail-free-card for many of America’s worst drug lords and criminals. Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin “would not only be alarming but pretty blatantly unconstitutional.” As former federal prosecutor Henry E. Hockeimer Jr. added: “You can’t game the system.”
CHRISS STREET & PAUL PRESTON
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