How Federal Surveillance and "Parallel Construction" Undermine the Rule of Law

by Mike Maharrey

When we talk about NSA spying, most people’s eyes glaze over. They just don’t think it will have any impact on them. After all, the surveillance agency only spies on foreigners and terrorists, right? And if some Americans’ data ends up in NSA databases in the process, well, that doesn’t really matter. It’s the price we pay for security.

But in fact, federal surveillance and the investigative practices it fosters undermines and subverts the fundamental rule of law in the United States.

State and local law enforcement agencies use the reams of data the NSA collects to prosecute Americans. Most of these cases have nothing to do with terrorism or national security. In fact, the vast majority relate to the so-called “war on drugs.” In the process, these state and local cops shred due process, obliterate the Fourth Amendment and make a mockery out of the “rule of law.”

Using a secretive process known as “parallel construction,” police build cases on illegally obtained, warrantless data collected by the NSA and other federal agencies without anybody ever knowing. These investigations take place in complete secrecy with no judicial oversight. Oftentimes, suspects and defense attornies have no idea how police obtained information.

Former NSA technical director William Binney called parallel construction “the most threatening situation to our constitutional republic since the Civil War.”

Reuters revealed the extent of NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations.

Through fusion centers, state and local law enforcement agencies act as information recipients from various federal departments under Information Sharing Environment (ISE). We also know that ISE partners include the Office of Director of National Intelligence, which is an umbrella covering 17 federal agencies and organizations, including the NSA. While fighting terrorism was always held out as the reason for dragnet spying, Binney said it was bound to be abused.

“That’s what happens when you allow this kind of assembly of information – that’s so much power. That’s like J. Edgar Hoover on super-steroids,” Binney said. “This is not compatible with any form of democracy at all.”

The feds share information gathered without a warrant and direct the local police force to make an arrest. Using parallel construction, investigators then build their case using normal policing techniques, getting warrants for information they’ve already obtained. The process serves to hide the illegally gathered information, creating the illusion of a legitimate case.

“You use that data to substitute for the NSA data that was originally used to arrest them. And you substitute the parallel constructed data in the courtroom, which I’ve called perjury. They’re lying to the courts and they’re subverting our entire judicial process,” Binney said.

Human Rights Watch issued a report on parallel construction earlier this year, noting that the process subverts the Constitution and undermines “fundamental fairness.”

“The United States Constitution draws on lessons learned from the abuses of the British colonial era in placing firm restrictions on how the government can behave when it wants to prove someone has done something wrong. It establishes criteria for rights-respecting searches and seizures, requires the prosecution to turn over to the defense any evidence favorable to the accused, and demands that all trials and proceedings take place in accordance with ‘due process’—that is, fundamental fairness. However, parallel construction—when sustained through the end of proceedings—means defendants cannot learn about, and therefore cannot challenge, government actions that violate these or other rights.”

Even so, a lot of people simply shrug and parrot the tired, worn “I don’t have anything to hide” mantra. Ironically, a lot of “law and order” Americans will simply shrug off gross violations of the supreme law of the land – the Constitution – if it serves to put some criminals in jail. If you really care about “law and order, the fact that the government routinely ignores the fundamental legal framework intended to keep it in check should concern you – even if you don’t personally think you have anything to hide.

And the fact is you may well have something to hide. Human Rights Watch offered a poignant warning about what can happen if government agents can cobble together cases based on illegally gathered information obtained in secret.

“This impact is not limited to criminal defendants. If government agents can potentially create privacy-violating, discriminatory, or otherwise unlawful programs or patterns of behavior in secret and without facing any negative consequences, the rights of every member of the public are in jeopardy. Taken to its worst logical conclusion, parallel construction risks creating a country in which people and communities are perpetually vulnerable to investigations based on prejudice, vast illegal operations, or official misconduct, but have no means of learning about these problems and holding agents to account.”

The secrecy inherent in parallel construction creates a two-way street. Not only do the feds share information with state and local police, data also flows the other direction. Local police gather data using technology often funded by the feds and then shares the information with massive federal databases. The process not only facilitates the prosecution of individuals based on secret information, it also allows secret surveillance programs to remain hidden. Oftentimes, prosecutors will even drop cases if defense attornies or judges start pushing them to reveal the source of information. Judges never have the opportunity to scrutinize surveillance technologies or practices because their use remains secret. Human Rights Watch Described how this can play out in practice.

“For example, if the government were to identify a suspect in a robbery by scrutinizing a store’s security video using a new but flawed facial recognition technology it does not want to reveal, it could send an informant to talk to the suspect and report what he said—then suggest in court records that this conversation was how the investigation began. Such possible uses of parallel construction are especially troubling in human rights terms because new technologies may be inaccurate (including, in the case of facial recognition software, for people of certain racial or ethnic groups) or raise new legal concerns. Unless judges are aware that such new technology has been used, they will not be able to assess whether the technology violates rights.”

In late 2013, the Washington Post reported that NSA is “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes location data on “tens of millions” of Americans each year – all swept up without a warrant.

Despite concerns, Congress has done nothing to rein in NSA spying. In January, Congress reauthorized the FISA Sec. 702. Before approving the six-year extension, the House voted to kill an amendment that would have overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.

Just one day after Trump signed the extension into law, news came out about the infamous FISA memo. This memo was available to members of the House Intelligence Committee prior to the vote to reauthorize FISA. None of this information was made available to Congress at large. Most telling, every single Republican member of the House Intelligence Committee voted to reauthorize Sec. 702, and in a heartwarming show of bipartisanship, six of the nine Democratic representatives on the committee joined their colleagues.

This is yet another indication we can’t count on Congress to limit its spy-programs.

But state action can take on parallel construction. A bill that just passed in Michigan would not only hinder federal surveillance by denying spy agencies material support or resources, it would also have the practical effect of blocking parallel construction. By barring state agencies from “participating with” federal warrantless surveillance, states can end parallel construction. Under the Fourth Amendment Protection Act, police would be legally blocked from using information passed down through these federal information sharing systems.

More states need to follow Michigan’s lead. If enough states begin to reject federal spying as a viable investigative tool, we can box them in and shut them down.

The Second Amendment Isn’t About Hunting or Self-Defense, But Revolution

After Orlando, some are calling for stricter gun laws, or even a repeal of the Second Amendment. But gun rights and liberty are inseparable.

By John Daniel Davidson

Last week, Rolling Stone published an article by David S. Cohen, a law professor who thinks the Second Amendment should be repealed. “The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact,” writes Cohen. “When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15 assault rifle and many of the advances of modern weaponry were long from being invented or popularized.”

In the wake of the Orlando massacre, Cohen reasons, “now is the time to acknowledge a profound but obvious truth—the Second Amendment is wrong for this country and needs to be jettisoned.”

This isn’t the first time liberals have mused out loud about whether the Second Amendment is really necessary, or whether it really means individuals have a right to own guns. But tragedies like Orlando seem to revive all the old arguments. Not that commentators are very knowledgeable about the weapons they’d like to ban. An AR-15, for example, can’t fire 700 rounds per minute, nor can any guy who’s taken a shop class modify a semi-automatic rifle into a fully automatic in five minutes, as Michael Moore seems to think.

But even if an AR-15 only fires once every time you squeeze the trigger, even if it can’t be easily converted into an automatic, just taking the rifle for what it is, liberals want to know: who needs a gun like that? How many rounds do you need to be able to fire per minute to kill a deer, or ward off a burglar? Does anyone really need a 25-round magazine? Isn’t the only reason for such firepower to make killing people as efficient as possible? Isn’t this a weapon of war? Why would American civilians need to own weapons of war?

The Second Amendment Guarantees the Right of Revolution

Turns out, that’s precisely the right question to ask. The Second Amendment, after all, doesn’t recognize our right to hunt deer or protect ourselves from criminals. Owning guns certainly makes doing those things easier, but it’s not why the Founders bothered to codify gun rights. They were getting at something else—the right of revolution.

Simply put, the purpose of the Second Amendment is to give the people the means to overthrow the government in the event it becomes tyrannical.

Most gun control advocates scoff at this. Indeed, it’s an argument that even some conservatives are hesitant to make. How could the people, armed with rifles and 

pistols, overthrow the government? On its face, it seems absurd.

More on that in a minute. But first, consider that the Second Amendment is unique among the amendments enumerated in the Bill of Rights because it contains a kind of explanatory preamble: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Edward J. Erler, a political science professor at California State University, San Bernardino, and an expert on the Second Amendment, has argued that the right of revolution is asserted in the Declaration of Independence, which states that governments derive their “just powers from the consent of the governed”—not every power, only “just powers,” which the people delegate to a government that is by definition limited to the purposes for which it was established, “the Safety and Happiness” of the people. Furthermore, the Declaration states that “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.” Erler says this is what has come to be known as the right of revolution,

an essential ingredient of the social compact and a right which is always reserved to the people. The people can never cede or delegate this ultimate expression of sovereign power. Thus, in a very important sense, the right of revolution (or even its threat) is the right that guarantees every other right. And if the people have this right as an indefeasible aspect of their sovereignty, then, by necessity, the people also have a right to the means to revolution. Only an armed people are a sovereign people, and only an armed people are a free people—the people are indeed a militia.

In recent years an argument has become popular on the American Left that the Second Amendment means only that a “well regulated militia” has the right to bear arms, not individuals. The idea is that, say, the State of Texas can form a militia and arm it accordingly, but individual Texans have no inherent right to the private ownership of firearms.

In 2008, the U.S. Supreme Court repudiated this idea in the case of District of Columbia v. Heller. The late Justice Antonin Scalia wrote the opinion for the majority and quoted Blackstone’s Commentaries on the Laws of England, which recognizes “the natural right of resistance and self-preservation.” Scalia insisted that the Second Amendment acknowledges rights that predate the Constitution, such as the right of revolution.

But Erler argues that Scalia “was wrong to imply that Second Amendment rights were codified from the common law—they were, in fact, ‘natural rights,’ deriving their status from the ‘Laws of Nature and of Nature’s God.’… Like the right to revolution, the right to self-defense or self-preservation can never be ceded to government.”

In Case of Civil War, Americans Need to be Armed

So what does this mean in practice? Are we to conclude that the Founders imagined a day when civilians armed with AR-15s and Glocks might one day march on Washington DC if the government ever became tyrannical? If the Second Amendment guarantees our right to the means of revolution, does that mean civilians should also be allowed to own tanks and artillery?

Not quite. The Founders thought standing armies were a threat to liberty, which means they surely would have thought that standing private armies constituted the same threat. Self-preservation and self-defense might be natural right, but even in Heller the Supreme Court indicated that there could be reasonable limitations on gun ownership.

To answer the scoffers on the Left, though, imagine what an American revolution—the exercise of first principles—might look like in the twenty-first century. The government, or a branch of it (most likely the executive) becomes destructive to the ends for which it was established. It tyrannizes the people, takes their property, deprives them of their rights, destroys their lives. A revolution, or an abolishment of that government, would likely not be a civilian undertaking but a military one. Working in conjunction with other branches of the federal government and perhaps some state governments, the military would effect a coup d’état.

It would likely be a kind of civil war, and civilians would likely be caught up in it at some point. Perhaps they would form local militias to defend their homes and businesses. Perhaps they would volunteer their services to military commanders or state police forces. Perhaps they would simply want to ensure the safety of their families.

To do any of that, they would need to be armed. Just as the Founders envisioned.