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.)
