‘Secret Discovery’ Practice Violates Right to Fair Trial: Report

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Photo by Rae Allen via Flickr

Human Rights Watch released an investigative report Tuesday claiming that the U.S. government consistently violates the right to fair trial proceedings by “deliberately concealing methods used by intelligence or law enforcement agencies to identify or investigate suspects—including methods that may be illegal.”

The international human rights body zeroed in on a common law enforcement practice called “parallel construction,” in which illegally obtained evidence is re-discovered by some other means– most commonly through traffic stops (sometimes known as “wall stops” or “whisper stops”).

“For example, if the government learned of a suspected immigration-related offense by a person in Dallas, Texas, through a surveillance program it wished to keep secret, it could ask a Dallas police officer to follow the person’s car until she committed a traffic violation, then pull her over and start questioning her—and later pretend this traffic stop was how the investigation in her case started,” reads the report. In one extreme case struck down by the Ninth Circuit in 2007, the government staged a car accident in order to conceal that its evidence had originated from DEA surveillance.

To investigate this practice, HRW studied interviews, judicial decisions, transcripts, briefs, and other court records from 95 relevant US federal and state criminal cases, in addition to other documents disclosed by the government, and media reports between April 2016 and October 2017. The organization also conducted interviews with 24 defense attorneys, current and former US officials, and experts from civil society groups.

Among the examples identified in the report are several cases in which surveillance data obtained by the NSA and/ or the FBI were used in investigations that led to prosecution. When challenged, the Justice Department claimed to be unaware that constitutional doctrines pertaining to illegally-obtained evidence can apply to foreign intelligence from non-Americans located outside the United States (section 702 of FISA).

The full report, Dark Side: Secret Origins of Evidence in US Criminal Cases, details how parallel construction:

  • Is employed frequently and possibly even daily;
  • Has roots in strained and untested government interpretations of U.S. Supreme Court and other cases;
  • “May be employed by a range of federal agencies responsible for investigating suspected violations of criminal and immigration law”
  • In particular, is employed by a part of the Drug Enforcement Administration (DEA) known as the Special Operations Division (SOD), at least part of which has been nicknamed “the Dark Side” and which the evidence suggests is responsible for passing tips to various law enforcement bodies with the expectation that those tips will not be revealed in court;
  • Is employed by the FBI via non-disclosure agreements that direct local police departments to employ “additional and independent investigative means and methods” to avoid revealing the collection of telephone-related metadata using cell-site simulators
  • Regularly relies on pretextual stops and searches of vehicles—an exercise of police powers that is sometimes known as a “wall stop” or “whisper stop” and that risks becoming unlawfully coercive
  • May also rely on other tactics, such as attempts to find incriminating evidence by obtaining a suspect’s consent to a search of his or her person or belongings, requests for call records (which do not require a warrant under US law), closed proceedings under the Classified Information Procedures Act, or the use of less-controversial intelligence surveillance methods to conceal more controversial forms
  • Is at least sometimes used in investigations involving relatively minor offenses
  • Prevents courts from providing oversight over surveillance and other investigative methods, and therefore from deterring law enforcement misconduct
  • Is facilitated by prosecution tactics for resisting defense attorneys’ efforts to find out how the cases against their clients truly originated, including prosecution claims that agencies such as the NSA are not part of the prosecution “team” and that prosecutors therefore are not required to find out if such agencies were involved in the investigation

“At best, it displaces judges from their role of deciding which government behaviors respect rights and which do not. At worst, it is a legalistic form of deceit, one that renders proceedings unfair and may ensure that violations of rights—not only of defendants, but of the US population at large—stay in the shadows, undetected and unchallenged.”

HRW recommends that Congress address the problem through legislation requiring “disclosure to criminal defendants of complete information about the origins of the investigations in their cases,” with special procedures in place when the information is classified.

“Congress should also adopt legislation requiring that all executive branch agencies be treated as part of the prosecution for the purposes of obligations to disclose exculpatory information.”

The full report is available online here. This summary was prepared by Deputy Editor Victoria Mckenzie. She welcomes readers’ comments.

One thought on “‘Secret Discovery’ Practice Violates Right to Fair Trial: Report

  1. OMG, US law enforcement arresting drug dealers, gang members, and criminals??? Shame, shame, shame! Who in their right mind would want to live somewhere without fear of being the victim of a crime? What’s life without a sense of adventure or the daily excitement from dodging danger? Screw this, I’m moving to Somalia!

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