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After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction." How do you reconcile this allegation with your statement that "the evidence is all public" and the "chain of custody of all evidence" is public? It appears that what is being described is a secret, shadow set of evidence, that in fact is not made public in any way, shape, or form.

tptacek 13y ago
You've misread the Reuters story. These cases start with "tips" based on excludable intelligence, but the DEA then diligently works to build evidence that isn't excludable. The excludable intelligence allows the DEA to "always be at the right place at the right time", but isn't (for instance) used as probably cause to effect searches. (I still think this kind of evidence gathering should still be excludable, as it no doubt would if the root of the investigation was torture and not foreign intelligence).
- graeme 13y ago
  Does this not fall under the fruit of the poisonous tree doctrine? http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
  - tptacek 13y ago
    Hopefully, but maybe not: https://news.ycombinator.com/edit?id=6160671 https://news.ycombinator.com/edit?id=6160671
- dylangs1030 13y ago
  From what I gather in this explanation, if the DEA has unusable evidence, they can still springboard it to finding evidence that would be admissible in court? Is that true? So, effectively, despite the fruit of the poisonous tree doctrine, there isn't real, persistent transparency going back more than a step or two in the evidence gathering process. It's more like judging immediate evidence on its own, without questioning the steps that lead up to its (otherwise valid) finding?
  - tptacek 13y ago
    Yes. It's a grey area. I happen to think it's on the black end of the spectrum. But it's not literally black; they're not introducing secret evidence, or even using secret evidence as the probable cause basis to effect searches.
    - dylangs1030 13y ago
      Right. A good counter to this would probably be requiring law enforcement to submit a report of all evidence, admissible and inadmissible, with a report of how it was found. If that's done, the only obstacle left would be corruption and deliberate lack of fidelity (a big only, but still an improvement).
    - agwa 13y ago
      It's beside the point to be talking about fruit of the poisonous tree because it would never even come up at a trial - as far as the defense knows, the investigation started with a traffic stop. They don't know the true reason for the stop so they can't challenge its constitutionality. In fact, secret evidence is used as the probable cause basis to effect searches, but the government is playing a neat trick where instead of admitting it's secret, they're just substituting the secret evidence with some innocuous basis for a traffic stop ("driving erratically", "changing lanes without indicating", etc.) that in reality never would have come up if not for the secret evidence.
      - tptacek 13y ago
        Secret information is motivating the search, in the same sense as a bias against African Americans could motivate a similar search, but the actual probable cause that forms the basis for the search --- the from-first-principles reason for the search --- can't be that secret information. I agree that not informing the accused of the application of secret information is one of the multiple problems with this program, which just to be clear I do not support.
        ellyagg 13y ago
- ellyagg 13y ago
  He didn't misread the story at all, what on earth are you talking about? The government is hiding the initial evidence. That means it's "not public". You are wrong. No one but you thinks it's OK to start investigations with "tips" based on excludable evidence. The rest of us literally consider that something we are protected from by the Bill of Rights. Investigations handled according to the excerpts in the article are precisely what we consider to be disgusting and evil. Most of us do not support the government trying to find loopholes in the Bill of Rights. We want the government to follow the constitution not only technically, but in spirit.
  - tptacek 13y ago
    None of this is responsive to any point I made. Not only that, but your comment misrepresents all the points I made, for instance by asserting directly that I support the program. It is thus hard to find anything to respond to in it.
    - ellyagg 13y ago
      You claimed he misread the story. He did not. The government is using illegal evidence as probable cause and then lying and saying something else is probable cause. That is, the real probable cause, the thing that actually turned them on to these suspects, is made "not public". It doesn't get much more "responsive" than that. Yes, I see that you claim to not support the program. It's hard to tell with how vigorously you are defending indefensible aspects of the program and seem to support parts of it on legalistic grounds when the issues at stake are legal AND moral. You continue to parse the posted article in an odd way that gives huge benefits of the doubt to the government when it would appear to deserve none.
      - tptacek 13y ago
        You don't understand the point I was making, or have seized on a part of the conversation where there's enough ambiguity that it's easy to jump in and generate faux outrage about. Meanwhile, your comment is yet another instance† of someone not being satisfied that we agree that the program is bad, but instead demanding that we find it bad for exactly the same set of reasons. Again: case in point for why HN is a terrible venue for political discussions. Incidentally, you might do better than "yes, I see that you claim not to support the program" [em: mine] when in effect admitting that you were not only wrong, but wrong in the entire premise of your response to me. † https://news.ycombinator.com/item?id=6160951 https://news.ycombinator.com/item?id=6160951
- smiddereens 13y ago
  It's like "solving" the odd-numbered problems with the help of the textbook's answer key.

tptacek 13y ago

You've misread the Reuters story. These cases start with "tips" based on excludable intelligence, but the DEA then diligently works to build evidence that isn't excludable. The excludable intelligence allows the DEA to "always be at the right place at the right time", but isn't (for instance) used as probably cause to effect searches. (I still think this kind of evidence gathering should still be excludable, as it no doubt would if the root of the investigation was torture and not foreign intelligence).

graeme 13y ago
Does this not fall under the fruit of the poisonous tree doctrine? http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
- tptacek 13y ago
  Hopefully, but maybe not: https://news.ycombinator.com/edit?id=6160671 https://news.ycombinator.com/edit?id=6160671
dylangs1030 13y ago
From what I gather in this explanation, if the DEA has unusable evidence, they can still springboard it to finding evidence that would be admissible in court? Is that true? So, effectively, despite the fruit of the poisonous tree doctrine, there isn't real, persistent transparency going back more than a step or two in the evidence gathering process. It's more like judging immediate evidence on its own, without questioning the steps that lead up to its (otherwise valid) finding?
- tptacek 13y ago
  Yes. It's a grey area. I happen to think it's on the black end of the spectrum. But it's not literally black; they're not introducing secret evidence, or even using secret evidence as the probable cause basis to effect searches.
  - dylangs1030 13y ago
    Right. A good counter to this would probably be requiring law enforcement to submit a report of all evidence, admissible and inadmissible, with a report of how it was found. If that's done, the only obstacle left would be corruption and deliberate lack of fidelity (a big only, but still an improvement).
  - agwa 13y ago
    It's beside the point to be talking about fruit of the poisonous tree because it would never even come up at a trial - as far as the defense knows, the investigation started with a traffic stop. They don't know the true reason for the stop so they can't challenge its constitutionality. In fact, secret evidence is used as the probable cause basis to effect searches, but the government is playing a neat trick where instead of admitting it's secret, they're just substituting the secret evidence with some innocuous basis for a traffic stop ("driving erratically", "changing lanes without indicating", etc.) that in reality never would have come up if not for the secret evidence.
    - tptacek 13y ago
      Secret information is motivating the search, in the same sense as a bias against African Americans could motivate a similar search, but the actual probable cause that forms the basis for the search --- the from-first-principles reason for the search --- can't be that secret information. I agree that not informing the accused of the application of secret information is one of the multiple problems with this program, which just to be clear I do not support.
      - ellyagg 13y ago
ellyagg 13y ago
He didn't misread the story at all, what on earth are you talking about? The government is hiding the initial evidence. That means it's "not public". You are wrong. No one but you thinks it's OK to start investigations with "tips" based on excludable evidence. The rest of us literally consider that something we are protected from by the Bill of Rights. Investigations handled according to the excerpts in the article are precisely what we consider to be disgusting and evil. Most of us do not support the government trying to find loopholes in the Bill of Rights. We want the government to follow the constitution not only technically, but in spirit.
- tptacek 13y ago
  None of this is responsive to any point I made. Not only that, but your comment misrepresents all the points I made, for instance by asserting directly that I support the program. It is thus hard to find anything to respond to in it.
  - ellyagg 13y ago
    You claimed he misread the story. He did not. The government is using illegal evidence as probable cause and then lying and saying something else is probable cause. That is, the real probable cause, the thing that actually turned them on to these suspects, is made "not public". It doesn't get much more "responsive" than that. Yes, I see that you claim to not support the program. It's hard to tell with how vigorously you are defending indefensible aspects of the program and seem to support parts of it on legalistic grounds when the issues at stake are legal AND moral. You continue to parse the posted article in an odd way that gives huge benefits of the doubt to the government when it would appear to deserve none.
    - tptacek 13y ago
      You don't understand the point I was making, or have seized on a part of the conversation where there's enough ambiguity that it's easy to jump in and generate faux outrage about. Meanwhile, your comment is yet another instance† of someone not being satisfied that we agree that the program is bad, but instead demanding that we find it bad for exactly the same set of reasons. Again: case in point for why HN is a terrible venue for political discussions. Incidentally, you might do better than "yes, I see that you claim not to support the program" [em: mine] when in effect admitting that you were not only wrong, but wrong in the entire premise of your response to me. † https://news.ycombinator.com/item?id=6160951 https://news.ycombinator.com/item?id=6160951
smiddereens 13y ago
It's like "solving" the odd-numbered problems with the help of the textbook's answer key.