Parallel Construction: Building Criminal Cases Using Secret, Unconstitutional Surveillance
by Iris Wagner
Ascension Alverez-Tejeda and his girlfriend stopped at a traffic light. When the light turned green, the car in front of them stalled. Alverez-Tejeda suddenly stopped before hitting the car in front of him, but the pickup truck behind him struck his bumper. Police arrived on the scene, arresting the truck driver behind him for drunk driving. Alverez-Tejeda and his girlfriend were then questioned about the incident, leaving the keys in the car for processing. During this time, a bystander entered Alverez-Tejeda’s car and drove away. Alverez-Tejeda and his girlfriend, shocked, were left behind as the police on site chased after his stolen car. The car was recovered and searched, with police finding large amounts of cocaine and methamphetamine.
Unbeknownst to Alverez-Tejeda was the fact that the whole incident was staged. That is, every person involved in the incident, aside from Alverez-Tejeda and his girlfriend, was either a U.S. Drug Enforcement Agency (“DEA”) agent or a local police officer. Weeks before, DEA agents had learned that Alverez-Tejeda was transporting and dealing drugs across state lines. Upon learning this, Alverez-Tejeda was placed under surveillance until they tracked down his car and performed this elaborate ruse. By staging this “accident,” “theft” and “chase,” they were able to seize the drugs without “tipping off” the conspirators or other people involved.
This process, in which government agencies deliberately conceal origins of evidence by creating alternative explanations for discoveries, is known as “parallel construction.” According to the American Civil Liberties Union, parallel construction is commonly used in a variety of government agencies to protect sources and mask methods of investigation. By definition, parallel construction allows government agencies to act non-transparently while shielding them from judicial review or public scrutiny, leading to a pressing issue of lack of accountability over government agents. The use, and lack of oversight, of parallel construction strategies can set a precedent in which investigations can take place based on prejudgment, misconduct, illegal surveillance, racial profiling, and pure suspicion, according to concerns conveyed by the group Human Rights Watch. And the lack of oversight of parallel construction can open up a Pandora’s Box of misconduct in investigative techniques used by law enforcement agencies.
In effect, this process can lead to a violation of constitutional and human rights and risks the legitimacy of criminal and judicial processes. Specifically, parallel construction infringes on the right to fair trial proceedings, as the concealment of investigative methods prevents defendants from challenging unlawfully gathered evidence used against them in court. Additionally, if the origin of the evidence obtained in the investigation is not transparent, it violates the right to access government evidence that is favorable to the accused. Importantly, parallel construction strategies rely on unlawful surveillance, which is a direct infringement on protected constitutional rights.
Examples of Forms of Parallel Construction
Parallel construction takes form in a variety of ways and is used in a multitude of contexts by federal agencies on a daily basis. Federal agencies use methods to conceal origins of evidence or suspicion by “rediscovering” evidence through legitimate means that they already have, conceal investigative methods through alternative stories, and systems of accountability within these agencies are often sparse, inadequate, or nonexistent.
But what exactly are these agencies doing? And how do they so easily get away with it? There are multiple examples of techniques and agencies that practice parallel construction or tolerate its use.
First, traffic stops and vehicle searches are most commonly used as pretexts for a larger investigation. As evidenced in the case of Alverez-Tejeda and his girlfriend, pulling someone over for a minor traffic violation is a simple and common way for law enforcement officials to initiate interaction with a suspect. Most likely, these people have been previously surveilled or targeted by law enforcement, but a traffic stop or vehicle search is the first transparent interaction or investigative technique that gets the ball rolling.
In other words, traffic stops are initiated based on previous knowledge or suspicion of illegal activity, with the hopes that law enforcement will then be able to use that stop to obtain more information from the suspect. In these circumstances, law enforcement will develop its own probable cause to justify a traffic stop in order to cover up or work toward a larger investigation already well in the works.
Many federal agencies, such as the FBI, ICE, and ATF, use this technique in collaboration with local police departments.
Warrantless searches also are a common and relatively simple form of parallel construction. The government may search an individual based on pre-gathered knowledge, but claim the search as their first interaction. Or, in other cases, a government official may search someone’s property without their consent or warrant, and then later use what was discovered during the previous search as the basis for a subsequent search.
In the egregious example of U.S. v. Grobstein, the defendant was traveling on a Greyhound bus across the country when he was discovered by a DEA agent to be in possession of methamphetamine. The defendant claimed that the DEA agent conducted a search of his bag without the defendant’s permission, found the drugs, and then later pulled the defendant aside for a “consensual” search in which he “re-found” the drugs, claiming that had been the first time he had searched the bag.
Another common form of parallel construction is via surveillance. Oftentimes, the collection of telephone data and records will be used in an investigation of someone without their knowledge. Sophisticated technology has been created that allows for the interception of data from hundreds of cellphones at a time.
For example, in 2013, it was discovered that the DEA had been using AT&T databases to access call records of U.S. citizens. When it came time for prosecution, agents would re-obtain call records or information that they had currently been aware of, but would act under the false pretense that this was their first time accessing the records. In other cases, information obtained by the NSA has been used against defendants without disclosing that the intelligence gathering agency was the source of the information.
Additionally, surveillance information has been obtained by the NSA and FBI under Section 702 as part of the Federal Intelligence Surveillance Court Amendment Act of 2008. Technically, Section 702 is meant to allow for warrantless surveillance of non-U.S. citizens for foreign intelligence purposes. However, this law has in some cases allowed for warrantless surveillance of U.S. citizens, who are “incidentally” or “inherently” involved. In these cases, law enforcement agencies are not obligated to disclose where or how they learned certain information.
The Drug Enforcement Agency’s Special Operations Division (“SOD”) is perhaps the most infamous when it comes to the use of parallel construction. The SOD is a task force that partners with dozens of other government agencies (such as the FBI, U.S. Customs and Border Protection, and city police departments) to help piece together multiple elements of a criminal network in order to help with the investigations of larger criminal operations. Therefore, a key function of the SOD is to obtain a large amount of information, secretly, in order to help support “intelligence-led” investigations. By taking advantage of intelligence data, the SOD helps investigations be more efficient and effective. Nominally, the purpose of the SOD is to gather context for an investigation, not gather evidence. However, this line can easily be blurred and crossed.
Initially, information gathered, stored, and searched via this sort of surveillance was used to help form a larger picture in the operation of criminal activity. However, this information eventually began being used in court and in criminal trials. When questions arose within governmental agencies about its legality, it was ignored because it was so easy to get away with, there was little accountability and the evidence was working so well in prosecuting large criminal operations.
Parallel Construction Violates Defendants’ Rights
The use of parallel construction is illegal and in violation of multiple U.S. constitutional rights and international human rights laws. Below is a discussion of specific laws and rights of which parallel construction is in direct violation.
The Fourth Amendment
The Fourth Amendment protects U.S. citizens from unreasonable searches and seizures and requires that searches be conducted with the presence of a warrant or probable cause. While some argue that parallel construction operates within the legal confines of the Fourth Amendment, it is evident that parallel construction is generally in direct violation of the Fourth Amendment and is therefore unconstitutional behavior in many instances.
The Right to Privacy (protection from surveillance)
The right to privacy is alluded to in the Fourth Amendment, suggesting that no one should be unlawfully searched. Therefore, the use of non-consensual surveillance tactics is arguably illegal and in violation of U.S. citizens’ constitutional rights.
The Right to a Fair Trial
When someone is formally accused of a crime, they are entitled to certain information and evidence disclosure, meaning that defendants have a right to receive “discovery” before their trial. Discovery includes a police report, recordings of police interviews with victims, photographs of a crime scene, and any other records relevant to the case. However, defendants who are victims of parallel construction are unable to discover and challenge evidence used against them in trial if the evidence and the investigative methods of gathering that evidence was concealed or never formally reported. Therefore, the use of parallel construction interferes with a defendant’s right to evidence disclosure and the right to a fair trial, which violates the constitutional right to due process.
Oftentimes, superfluous amounts of evidence and discovery are made available to the defendant. However, most of that is not relevant or important to how the investigation began. In these cases, it appears as if the defendant’s rights have been respected. However, the most important information, which could potentially expose questionable investigative techniques, are withheld from the defendant in cases involving undisclosed parallel construction.
This often leads to the accusation by prosecutors that a defendant is merely speculating if he or she attempts to challenge the evidence at their trial. If a government agency attempts to conceal a path of investigation, it will most likely always be more successful than the individual seeking to defend him/herself. In fact, the processes which fall under parallel construction techniques are often not even recorded anywhere within the agency, making it impossible for the defendant to ever learn the truth of their investigation.
It may very well be the case that the prosecutor has no record of this information either, and technically, prosecutors’ offices are not required to. But if they are the ones processing the evidence used in a case, it is it ultimately up to them to find out and disclose if intelligence surveillance or other tactics were used in an investigation. The fact that prosecutors often do not do this makes them complicit in a cycle of illegal surveillance, acquisition of evidence, and lack of accountability within a government agency, thereby tainting the integrity of the criminal justice system.
However, surely in some cases, a prosecutor would attempt to gather all trails of evidence, both good and bad, to comply with the ethical requirements of the legal process. But in some of these cases, the government has resisted motions for the disclosure of unrevealed investigation techniques, claiming that the information is either irrelevant or undiscoverable. This claim is valid to a certain extent in that a line needs to be drawn at a certain point on the disclosure of relevant information. However, this can easily be used as an excuse to withhold investigative information and evidence from a defendant, therefore violating the right to a fair trial.
Additionally, it can be claimed that the government does not intend to use certain evidence as part of the prosecution, and therefore does not need to release it to the defendant, or anyone for that matter. For example, information on a U.S. citizen gathered through the previously mentioned Section 702 will likely never be used as evidence against someone in a criminal proceeding (except in rare instances), and therefore any information and process of gathering that information is not required to be disclosed or released to anyone. This is yet another example of the cyclical reinforcement of parallel construction and how government agencies have been subjected to virtually no accountability, able to get away with just about any tactics they deemed “necessary.”
No matter what the circumstances or who is withholding the information, parallel construction techniques violate a person’s right to a fair trial, as they conceal the process in which people are investigated, incriminated, and convicted.
Checks and Balances
The practice of parallel construction is often overlooked by the court, and government agencies who use parallel construction techniques are, in effect, overseeing themselves. For example, the use of parallel construction by the Special Operations Division of the DEA is overseen by the DEA itself (and its parent agency) to determine what activities are legally and morally acceptable. Therefore, without the involvement or oversight of judicial review, the practices of parallel construction are widely unregulated.
Unless or until a defendant brings a case to court in which he or she believes parallel construction took place, courts do not monitor the practices of the DEA, or other agencies using these techniques. Even if a government agency’s investigative techniques are illegal, they have the power to conceal these actions in the best interest of their own agency and is therefore unregulated by any external body.
The lack of checks and balances in this process contributes to a growing power within government agencies and increases the potential for illegal or unjust surveillance to take place.
Parallel construction techniques and practices also violate fundamental human rights and therefore sets a precedent that these rights do not need to be respected and thus can be violated with impunity.
First, the very concept that lies behind the use of parallel construction assumes that someone is guilty, before formally proven to be so. In other words, the presumption that all U.S. citizens are innocent until proven guilty is not respected. For example, pulling someone over with the intention of busting them for drugs assumes that they are guilty before they even come into contact with law enforcement or the justice system.
Additionally, as previously noted, parallel construction is used to conceal surveillance methods, which in turn deprives the public of their right to understand the government’s actions and investigations. When secret monitoring is involved, people have the right to be informed of this tactic, and have an understanding of what it entails. However, under current practices, individuals are deprived of these rights.
The use of parallel construction permits the government to get away with a large amount of unlawful surveillance and lack of transparency which, in turn, removes any incentive for the government to follow the law. Without any accountability, the government is able to continue practicing parallel construction methods and never faces repercussions for their unlawful conduct.
International human rights law requires the right to “adequate ... facilities” for preparation of defense in criminal trials. Therefore, this includes the right to access documents and other materials of evidence that are being used in a case against someone. As noted above, parallel construction prevents a defendant from having access to all paths of evidence used against him or her, which is therefore in direct violation of this international human right.
Additionally, international human rights law addresses right to privacy and states that government interference with privacy must achieve a legitimate aim and be done so within accordance with the U.S. Constitution or any international or domestic law. While a “legitimate aim” can be ambiguous, there are many forms of surveillance that go beyond what is appropriate or “legitimate” for the sake of a case. For example, the NSA’s surveillance of thousands of Americans’ phone records is beyond a “legitimate aim” for a specific case or purpose. Even beyond this, international human rights law requires that the government notify individuals if they are being surveilled. With this in mind, parallel construction violates these human rights by definition, as it means that those surveilled are never informed of to what extent they were being tracked, followed, or watched.
In all, parallel construction violates the right to a fair trial, violates the right to privacy, and the lack of accountability allows government agencies to get away with violating these rights on a regular basis.
Recommendations for the Future
Parallel construction violates multiple U.S. constitutional rights and international human rights conventions. Nevertheless, government agencies regularly use these techniques purportedly in an effort to make our country a safer place. But the fact remains that they are actively engaging in highly questionable and often unlawful activity that violates the rights of the very people they argue they are protecting. It is essential that the institutionalized systems that condone, and even encourage, these practices are reformed or abolished, and that parallel construction be officially prohibited.
There are multiple ways in which we can reform the systems that encourage or at least tolerate parallel construction to facilitate more humane and constitutional practices, which prevent parallel construction from taking place.
First, we can address issues through legislation by requiring that all origins of investigations are disclosed and are public record. Additionally, defendants and/or suspects should be notified of all investigative techniques during and after the time they are being investigated. Government agencies should be held accountable for their actions and should be transparent in their practices regarding their investigative efforts and techniques.
Second, the U.S. Department of Justice should maintain legal oversight of all government agencies, including the FBI and the DEA. Upholding the guarantee of governmental checks and balances is essential to our constitutional framework, and to the honesty and operation of government agencies. With judicial involvement in the oversight process, agencies would be held accountable for practicing legal and ethical investigative techniques, without the freedom to conceal them themselves.
Third, within the government agencies, policies and regulations should be developed that prohibit the practices and norms of using parallel construction. It is clear that government agencies, the DEA specifically, explicitly allow for these techniques under certain circumstances. These policies need to be addressed and abolished immediately as they are often unconstitutional and unjust.
Fourth, local courts must take responsibility for regulating the use of parallel construction by requiring the prosecution to disclose all evidence and investigative techniques. While the Justice Department can regulate government agencies on a larger scale, it is the job of the lower courts to make sure that these specific practices stop from the bottom upwards.
Lastly, grassroots campaigns and nonprofit organizations should work to inform the public and civil society of the practices of parallel construction and help educate individuals on their rights. With a better public understanding of parallel construction techniques, and strategies to exercise one’s rights, local law enforcement and courts would likely not be as successful in parallel construction techniques, such as pre-textual stops or “consent” searches. Greater education on this topic could help create an informed society in which we do not cooperate with the unconstitutional practices of our government agencies.
Sources: www.hrw.org, www.techdirt.com, www.reuters.com, www.forbes.com, https://theintercept.com, www.npr.org, www.wired.com, www.washingtonpost.com, https://reason.com