One element of the Department of Justice’s (DOJ) mission is “to ensure fair and impartial administration of justice for all Americans.” The Merriam-Webster Dictionary defines “fair” as “marked by impartiality and honesty.” Parallel construction is a practice in federal government that allows officials to keep an investigative activity hidden from the courts and the defendants by going through motions of re-discovering evidence in a different way. This practice leaves many questioning the impartiality in the DOJ’s mission. Further, this practice potentially creates legal implications and infringes on human rights.
In his Huffington Post article, Peter Van Buren provides an illustration of parallel construction: “An NSA (National Security Agency) email intercept shows our Mr. Anderson received a Fedex package with drugs, which he hid under his bed. The DEA takes this info, and gets a search warrant for the Fedex data, which leads them to Mr. Anderson’s. A new legal warrant authorizes a search and agents “find” the drugs right where the NSA said they were in the first place.” In sum, through parallel construction, law enforcement uses evidence in the NSA database, which was gathered in methods like communication-tapping, and restructures the evidence to make it seem like they learned about it in an alternative way.
According to a Human Rights Watch report, the practice of parallel construction happens frequently, maybe even daily. This is problematic because it allows the United States federal government the opportunity to conceal potentially illegal methods that intelligence or law enforcement agencies used to identify or investigate suspects. It also allows officials to keep investigative activity hidden from courts, and in turn, the public.
In an attempt to justify this practice, the government often cites the “exclusionary rule,” a doctrine that gives judges the authority to “not allow” prosecutors to bring in evidence that was more than likely acquired illegally. This, however, can open the floodgates to potential investigation based on prejudice and creates a slippery slope for the misconduct of officials. If federal agencies and prosecutors have this immense power and no obligation to record how they found evidence, the question hinges on where to draw the line.
The common practice of parallel construction has the potential of violating many privacy acts such as 18 U.S. Code Section 2515, which prohibits the use of evidence from intercepted wire or oral communication. When officials are not obligated to report how they found evidence, they can be more tempted to encourage unlawful behavior such as parallel construction.
Parallel construction, while common and accepted, infringes on major constitutional right. Under binding international human rights law, criminal court case proceedings must be “fair” and take place in a “competent tribunal.” Since parallel construction, however, extends the opportunity to hide methods of discovering information, it is unfair and threatens defendants’ Fourteenth Amendment Rights. The Fourteenth Amendment protects citizens from unwarranted and unreasonable searches, but after reconstructing the evidence, defendants might be “experiencing serious infringements of their rights without their knowledge.”
Parallel construction also threatens criminal defendants’ Sixth Amendment Right to a Fair Trial. The Sixth Amendment guarantees the rights of criminal defendants, including their right of knowing the evidence being brought against them. When officials are permitted to hide their methods of finding evidence, defendants cannot discover or challenge the possibility of a violation of their rights. In addition to the infringement of a defendant’s rights, parallel construction also threatens the right to a Fair Trial because defense counsel cannot formulate the most effective case in order to properly represent their client.
Not only does parallel construction infringe on human rights by infringing on constitutional rights and depriving them of a fair trial, but it is also a form of discrimination. Technology could be inaccurate and therefore lead to wrongful convictions. By allowing officials to take extreme measures and lie to courts, parallel construction undermines the human right of defendants to be innocent until proven guilty. In sum, parallel construction condones unfair practices toward criminal defendants, and offers an unjustifiable sense of leniency and preference to officials because of their position.
The Justice Department should take the proper steps to prohibit the practice of parallel construction. Another pivotal actor in eliminating this practice is the judiciary. It is possible that judges themselves hold the most weight in fighting this injustice. They can do so by directing the prosecution to disclose all investigative findings. Ultimately, the abuse of this practice needs to be combatted through legislation requiring prosecutors and officials to disclose their methods of finding evidence.