This is probably referring to "SOD tips" or "SOD tip-offs", where intelligence-community information is "laundered" through a source that provides a tip to investigators, as discussed in this Reuters article from last year:
Although very interesting the Special Operations Division (SOD) is probably not what was redacted:
1) It is a legalization methodology not a unit of the DEA. The other items mentioned FISA, CIPA and parallel construction can all be used to make illegally obtained information legally usable in court.
2) It is a word/phrase that is approx 12 letters long. "SOD" and "Special Operations Division" do not fit and while "SOD tip-offs" fits it does not sound like terminology the DEA would use.
I suspect it is either some executive order[1], presidential directive[2], presidential finding[3], secret memo or some other secret bullshit they just made up and that lawyers at the DOJ and White House (and perhaps some judge) decided was both constitutional and could be kept secret. I'm thinking along the lines of Obama's kill list[4] and Bush's torture memos[5].
Man, if I were creating the rules to govern a UTOPIA - I mean a freaking UTOPIA - and I could choose any rules I wanted.
And I wanted to make them durable. I mean DURABLE. Lasting hundreds of years. Thousands even.
You know what I would do? I would make some rules that were even stronger than whatever laws were in effect at a given time. And I would let THE PEOPLE choose whatever transient laws they wanted.
These even stronger rules - would protect people from choosing shitty transient ones.
Well, turns out philosophers DID get this chance.
And, when it came time to write these strong rules - and they wrote ,
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall NOT be violated."
To protect their citizens from whatever government was in effect at the time...
.... the pen lingered....
... and lingered ...
and lingered.
And through no pressure. No outside force except the desire to create a utopia.
...started writing "but".
Why? Why? Why?
Why not just write "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall NOT be violated"?
Think about this, and perhaps you might start to see this world in a slightly better light.
Trying to understand your point. Do you mean the phrase "but upon probable cause"? And if so, do you mean that it would have been a better utopia if searches were not allowed even with probable cause?
Probable cause is not required for searches. Probable cause is required for a warrant to issue. Searches must be reasonable. Searches without a warrant are simply presumptively unreasonable.
Given that is already in there why add the additional caveat that then allows unreasonable searches? Surely reasonable searches are all we really need.
"unreasonable" is the key to modern warrantless searches, not the "but". Also, the but is after "and no warrant shall issue". These clauses are read mostly separately in current interpretation.
Heh, laundering evidence. This sounds a lot like what News of the World did with their phone "hacking" scandal - they'd illegally break into peoples voicemail, record it, then stuff the recording in an envelope and mail it to their receptionist so they could claim it was an anonymous source.
As far as I can tell, in parallel construction they use illegitimate cause or illegal evidence and ensuing investigations to construct a hypothetical way that they could have legitimately found cause or evidence, and then they lie and say that they did it the legal way.
With SOD tips, they are getting tips from illegal sources and using them for cause, and simply lying and saying that they got the tip from somewhere else, like an anonymous informant, because there is no legal way they could have known. It's just a step away from hiring actors as witnesses, which I'm thinking is not very far away.
In both cases, it helps to be clear about terminology.
You can't simply introduce evidence and conceal its source from a judge; that evidence would be excluded from trial. You also can't introduce evidence that chains back to excludable evidence.
But the products of NSA/FBI fusion (or "SOD", or whatever you want to call it) are never introduced as evidence, either directly or as cause to authorize a search. That's why the process is called "parallel construction": it is the legal opinion of the DOJ that you can use excludable evidence as intelligence so long as you then build a case from probable cause (either for a warrant or arrest) that doesn't stem from that intelligence.
In other words, you can exploit the NSA to put a detective in the right place at the right time. But the detective will need to observe you doing something that gives them probable cause for a search: you'll need to, say, do an open-air drug transaction, or get stopped for running a red light and then have drugs plainly visible in your car (or have a dog authorize the search, which is plainly problematic).
The way parallel construction works, the information coming from parallel construction is never brought to court. This bothers criminal defense attorneys and civil rights advocates. It has never been the case that prosecutors are required to furnish all the information they collect on a suspect (though they are required to furnish any potentially exculpatory information, per Brady v. Maryland). But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
But the detective will need to observe you doing something that gives them probable cause for a search
Alternatively, once the detective has been "informed" that the suspect is already known to be guilty, and thus that their organization wants this person arrested and off the street, that detective may feel comfortable making statements and performing acts that they otherwise would not. In the simplest form: lie about it, but with clear conscience because you are doing so to convict a known criminal.
Anecdotal, but I recently spent my jury duty as foreman for a case where the police claimed that the defendant was transporting a legally-owned handgun in an illegal manner (loaded and in an unlocked case). For all I know, the defendant we unanimously found "not guilty" may have been correctly known to be on his way to commit a murder. But all of us on the jury concluded that the police who testified were simply lying about too many of the major details to be trusted.
And I don't mean poor recall: this was flat-out perjury that we felt contradicted the police's own photographic evidence. While my faith in the system is really shaken, I'd at least like to believe that the detectives felt they were doing "the right thing" by trying to put this person in jail. But it certainly gives me cause to worry about the side-effects of parallel construction. Given a preconception of guilt, how much farther will the local authorities feel comfortable "bending the rules" in ways that pervert the system to their advantage?
This isn't hard. The constitution says the order is
probable cause -> search
Parallel construction is
search -> probable cause -> search again
The first search is blatantly illegal according to the plain language of the constitution. No fancy lawyering needed. That they lie about the origin of the probable cause is icing on the illegal cake.
There's a difficult semantic problem that comes up in these conversations, how to explain...
Publishing the AACS key as Wikipedia does [1] is, as you would say, "blatantly illegal according to the plain language [of the law]. No fancy lawyering needed." In spite of the fact that is "blatantly illegal", they do it, and nothing bad happens. How can this be?
Well, the reason is because "blatantly illegal" is not a magic word that prevents people from doing things. It's not a technical measure that stops you in your tracks.
"Illegal" simply means that someone has the option to get a specific legal remedy from you. And whether that somebody is interested in exercising that remedy or whether the remedy is very good are completely different questions.
It is "blatantly illegal" to search your house but that doesn't stop the DEA, your ex-girlfriend, or the burglar down the street from doing so. The only operative question is, "what is the remedy?" And on this question the constitution is "blatantly" silent.
In the illegal search situation legal precedent has decided the remedy is that you cannot use the evidence you collect illegally in court. This is called the "fruit of the poisonous tree" doctrine.
Now maybe you think that remedy is insufficient, that there should be a fine or we should put them in jail. That is a perfectly reasonable view. But "this is blatantly illegal under the constitution" is not an argument that competently advances that position for a harsher remedy. Everybody already agrees that illegal searches are illegal; that is true by definition. Not everybody agrees about what the remedy should be.
Sure, that's why they hide all their shenanigans under national security secrecy. To make it impossible to challenge and for a judge to make a determination of legality. Thereby circumventing the system of checks and balances and tearing another hole in the constitution.
No. That's serial construction. To work, the process must defensibly be:
search -> [intelligence]
probable cause -> search -> [evidence]
Think of parallel construction the way engineers think about clean-room reimplementations, for instance of the old Phoenix BIOS. The probable cause that authorizes the evidence search has to be de novo; LEO's can't search you simply because the NSA tipped them off.
Right, they pretend it's parallel when in fact it's serial. The first illegal search is what generates the lead, no matter what secret rationale they come up with.
NSA surveillance of a smuggler in Mexico produces the name of Joe Schmoe in El Paso (for concreteness let's say the intercept is "Joe Schmoe will distribute our cocaine, as always"). The DEA gets tipped, Joe Schmoe's name goes up on a tack board and he's put under surveillance. A case may be built from there using classical police methods.
> Parallel construction is not that. You're describing simple perjury.
The only difference between "parallel construction" and "simple perjury" is that the people testifying aren't, if parallel construction is done "correctly", even aware that it has been done, and thus aren't committing perjury (though the agency doing parallel construction is committing a massive fraud on the courts.)
> But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
The argument against parallel construction is simpler than that: The exclusionary rule exists not because guilty defendants have a right to go free, but rather to deprive law enforcement of the benefit of an unlawful search. Allowing parallel construction would impermissibly allow law enforcement to benefit from the unlawful search.
> It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
The distinction is that evidence from a CI would be admissible in its own right. Further evidence that it leads to wouldn't be the fruit of the poisonous tree.
The trouble seems to be that the exclusionary rule breaks in the absence of total transparency from law enforcement. The exclusionary rule exists to remove the incentive for law enforcement to conduct unconstitutional searches. If law enforcement doesn't have to disclose all their sources, even if parallel construction from poisonous evidence was nominally prohibited, defendants wouldn't be able to prove it when it happened. It would reintroduce the incentive for law enforcement to conduct unconstitutional searches and thereby make the exclusionary rule insufficient. This is a hard problem, although maybe requiring a high level of transparency and disclosure from law enforcement would be beneficial in general.
No, evidence from a CI is not admissible when the CI is not revealed to the court. I'm not saying parallel construction applies to every case involving a CI; I'm saying it applies to cases made from CIs who remain sources after the case is brought, and are thus concealed from the court and (more importantly) the defendant.
Again, the distinction is that the use of the CI is not a violation of the defendant's constitutional rights. Hiding the existence of the CI doesn't have the effect of hiding a constitutional violation by law enforcement.
Just to add the relevant terms of art to this post for people to google if they're interested in the legal doctrine: "exclusionary rule", "fruit of the poisonous tree", "independent source", "inevitable discovery", "attenuation", "good faith reliance", and "standing".
And the accumulation of these concepts and precedents have added up to the current, nearly-legal, total surveillance state that we're developing into; a court decision, a failure to allow a challenge to a court decision, a secret interpretation by an executive branch counsel that is made illegal to either see or challenge but the executive operates as if it's established law...
The problem isn't that there isn't a body of precedent that allows a lot of this garbage, it's that those precedents tend to be equally horrible and biased towards the powerful.
edit: Just saying:) Not trying to be antagonistic. Just venting.
>you'll need to, say, do an open-air drug transaction, or get stopped for running a red light and then have drugs plainly visible in your car (or have a dog authorize the search, which is plainly problematic).
Or be a totally innocent person who is unknowingly transporting contraband and say, "of course I don't mind, search my car, officer."
Why would anyone willingly give up their protections under the law? Of course, if you say "no", they'll just get their trained dogs to give them "permission".
>Why would anyone willingly give up their protections under the law?
* Implied or implicit threats from LEO
* Unwarranted trust in law enforcement
* Belief that they are making the most efficient choice.
* Ignorance of their rights
* etc.
Assuming the people they claim are the informants actually exist, and are not complete fabrications, then really the only difference between these 'informants' operating in this capacity and actors are what guilds they do or do not belong to.
There's no implication that the source is necessarily illegal.
Let's imagine a more traditional wiretap scenario. Say the police are gathering information on a major drug kingpin, and they need more information from him.
But they want to bring in one of his lieutenants because of information they've found on the wiretap. It'd make plenty of sense to find a way to bust the lieutenant without making the existence of the wiretap public.
It's not really about "laundering" evidence, in this case. Though it could very easily be used that way, since the actual source of the actions is hidden. The original wiretap could have been perfectly legal.
You can be 100% sure these things "pan out" in the sense of resulting in convictions, because a lot of people are going to plea-bargain when confronted by the DEA, whether they are actually guilty or not.
Essentially, once you have poisoned the actual trial process (and this shows just how poisoned it is), no statistics about "how effective this is" are going to mean anything. After all, I'm sure some DEA agents know they're convicting innocent people I'm sure others have blanket belief in the guilt of many innocent people. It's kind of a truism - once you abandon objective, unbiased inquiry, it's gone.
To the best of my (limited) understanding, if you pull someone over because of a 'tip' and then search them, absent some other cause, the source of the tip needs to be documented to the court. You can't generally search people based on anonymous tips. (It's a little more complicated than that, of course: http://www.casebriefs.com/blog/law/criminal-procedure/crimin...)
Right, and the reason SOD tips work is that they don't need to be anonymous--as with laundering money, there's a legitimate front that the information is passed to (e.g. some known minor criminal who can be leaned on), which can then be cited as its source.
It's one thing for an SOD tip to put a cop at the right place at the right time to observe a transaction or pull over a car driven by a guy with warrants out.
It's another thing entirely for an SOD tip to be the totality of probable cause, and for the police to lie to prosecutors or prosecutors lie to a judge about it.
The latter case sounds much less likely to me, given the effort these slide decks show of LEOs trying to stay within the confines of the law (I don't happen to agree with where those confines are, but the evidence we have shows the DOJ paying at least lip service to it).
Unbelievable. Yes, we know they do this. We had this conversation a couple months ago and it was attached to an article describing exactly what they do. They don't just put cops "in the right place at the right time", which is your favorite and flawed analogy. They tell cops to pull someone over at the right place and the right time and make up a reason to pull them over.
This should be illegal. It should be illegal even if something perfectly analogous has existed in that past. The extensiveness of a technique and the power that it allows matters.
I'm not going to go back and find this conversation because I shouldn't have to. It's not my job to follow you around and make sure you are being intellectually honest. It's pretty frustrating that someone as well-respected as you are here, and someone who is such a prolific poster, refuses to update his model of the world when new information is introduced into it. You are mind-bogglingly tenacious in trying to quell the outrage over civil liberties abuses and apparently go as far as selectively forgetting relevant information.
No, that's not your job. It's weird that you think it is.
Could you cite a link to the case you're thinking of, where evidence from SIGINT surveillance was used directly as probable cause for a search?
Also, could you yourself update your mental model of what's happening on HN? You obviously think I'm a tenacious foe of civil liberties causes. The opposite is true. I've done as much in the real world to support civil liberties causes as most anyone else on HN has. I contribute to candidates who I believe support a strong fourth amendment. I've canvassed for candidates like them. I donate to civil liberties causes.
What I have a problem with are batshit conspiracy theories, which is something HN is rife with. People should stop pretending that conspiracy theories are helpful when they're of the right valence. They aren't.
If you've actually followed me around HN, you know that I'm not at all unwilling to acknowledge when I'm wrong, as a cursory look at HNSearch will show. So, instead of yelling at me, why not show where I'm wrong?
Personal anecdote: riding as passenger in friend's vehicle, LEO pulls over, friend says 'oh, not again.' LEO advises '... license plate lamp out ...' Friend says, 'no it isn't,' exits vehicle, examines lamp -- in good working order. LEO says, 'must have made a mistake'. Friend says, 'no, I have a name similar to someone with an active warrant', cop says 'uh, huh'. Runs license. Free to go.
Lawful stop? No. Remedy? No.
The core issue is that the judiciary's (and your) presumption of reliable and trustworthy law enforcement behavior is not valid. This is a LEO 'company culture' problem which has always existed (formerly a racial problem, but now everyone's problem now that we're not doing that any more).
I'm not sure what the answer is, other than people need to learn what has happened in the ghetto for the last 200 years, then accept that they're next.
I'm confused about the exact details here -- does he believe there is an auto plate tracker which shows the name the vehicle is registered to (him) which gets a false-positive on a secondary search for name? It would seem more reasonable to have a list of suspects/warrants, and then a list of their own vehicles, and just pop it up then. You'd also want to find cars the suspect was known to drive, since it's pretty common for a "criminal" to register his property in someone else's name to protect from seizure.
I think it would be more plausible that he was profiled for race/location/type of vehicle/etc., rather than his name, but maybe there are more specifics?
Yes, I just don't see how an automated license plate scanner would get confused by a similar name -- I assume those have access to DMV database, so it would pull up 5DES800 and see it's registered to Marcus Walters of 1 Crypto Way who has 5 open warrants for overthrowing the state; it wouldn't say "this is a car registered to Marcus Walter" which the officer would then confuse with the open warrant for Marcus WalterS.
I suppose it's possible the ALPS could be configured to just ID every single car, and the officer had in his mind (or using another system) the name of a specific suspect who he matched (erroneously) to the ALPS results of the victim here.
I don't think there are documented cases of the SOD information being used as probable cause (in the sense that it was presented in court as justification for a search). Much of the point of the program is to avoid that happening.
It seems likely there are cases of the SOD information being used to target people for abusive traffic stops (the agent in the Reuters article says And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it).
With the tactics being top-secret I doubt there would be a lot of documented cases of it happening that could prove it exists - that would kind of defat the whole purpose of it being secret. It would probably take another Snowden to get any evidence on it.
>It would probably take another Snowden to get any evidence on it.
And I think that the possibility of another Snowden for this requires that there be some functioning mechanism by which requests to do this are centrally cleared, or even recorded, which I don't think is a sure thing. I see it just as likely that different agencies and departments within them are operating under a lot of different standing blanket orders in the form of legal interpretations, and that once a parallel construction is created, the records of any alternate explanation are destroyed (or were never created.)
Not necessarily - some policeman or policewoman doing this or seeing her peers do that can one day wake up and say - I had enough with violating rights of Americans, I'm just going to document everything we're doing that is wrong and then publish it, and be whatever it will be. Fat chance, I know, but who thought it could happen in NSA before it did? You never know. And after that happens, of course higher-ups will deny that happened, but once the cat is out of the bag and the attention of the society has been captured that would be a different story altogether than now. It would move from "those crazy libertarians are breaking out their tinfoil hats again" to "omg omg police is really doing it right under our noses! It could even happen to me!"
For once, somebody could get and publish all those training manuals - unredacted, with all the juicy details. With it being this entrenched, something must be written down - you can't rule system this vast on lore alone.
LEOs and DAs have no problem paying for false testimony, whether it's to cover SOD or not. They can use taxpayer money and there's no real repercussions for getting caught.
Innocent people are routinely murdered by police in my area, with no justification or repercussion. The lucky ones who survive get million dollar settlements in taxpayer money. The cops never face serious punishment. We had a group of LEOs literally beat a defenseless man to death, captured in full audio and video, and they got off scot free. Look up Kelly Thomas.
I know that police here in Australia will lie about where a tip came from, including to a Judge -- solely because one of my best friends is a cop and we've discussed it before. The thing is, that could be an isolated incident, I've no idea whether that happens a lot. That said, yesterday there was the article on HN about the Kings County police officer who indeed tried to lie about what had actually transpired, only he was caught out and fired(! Holy crap how good is that). I think none of us have enough info to really know what goes on, so I personally withhold my judgement about it in general, unless in a specific case I have seen credible info to lead me to believe otherwise. Hard topic, tbh.
If the 'tip' is "it sounds like my neighbor is gonna kill his girlfriend or something", and police enter and see contraband, is that admissible?
Are "drug dogs" keyed to a specific substance? Is the cause given by a drug dog alert enough to conduct a general search and everything found admitted as evidence?
You can't search a car on a traffic stop without probable cause of an actual crime.
However, if your traffic stop is for a moving offense that warrants arrest (DUI, for instance, or reckless driving), all bets are off, because the police can do intrusive searches incident to an arrest.
Also, if you're stopped for a moving violation and either authorize a search, or have evidence of probable cause in plain view (for instance, a bag of weed in the passenger seat), all bets are again off.
And to get this power, all the dog has to do is to pass a training program. That's like giving anybody who has a "diploma" from a "prestigious Internet university" powers to arrest and imprison. Only in this case you can't even argue with them because how can you argue with a dog? A dog barked, thus search is authorized.
Now let's think - can there be any ways to make the dog bark? If somebody does that in order to make foolproof instant probable-cause-on-demand, what would be his risks that the dog will grow a conscience and tell everybody he's been lying for years?
Worse, from what I recall there are actual scientific studies out there demonstrating that many of these dogs do indeed bark when their handler thinks there are drugs rather than when they actually smell them.
http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE...