Despite Controversy, Parallel Construction is Effective and Legal

One of the most controversial publicly-known programs run by the DEA involves parallel construction, a process that makes use of information intercepted by the National Security Agency (NSA). The program is managed by the DEA’s Special Operations Division, a secretive branch of the DEA most famous for bringing down the international arms dealer Victor Bout.

Parallel construction happens when agents pass on incriminating information about a US citizen that has been intercepted and given to them by the NSA. This information may be distributed to any local or state law enforcement agency, usually through other DEA agents embedded in joint terrorism task forces or otherwise part of local-state-federal law enforcement partnerships.

To avoid jurisdictional legal issues and compromising investigative methods, the DEA agents tell local law enforcement to, for example, be at a certain rest stop at a certain time and date looking for a car with such-and-such license plate number. Local law enforcement would then conduct a traffic stop and find drugs in the car, confirming the original information that was passed on by the NSA. However they would construct their case as having started with the traffic stop without mentioning the NSA or DEA.

The DEA defends this practice saying that it is essential for protecting informants, undercover agents, and investigative methods. It’s an old bedrock concept in law enforcement that has been practiced for decades. When done correctly it is very effective and completely legal.

Parallel Construction Involves Some Legal Gray Areas

It’s easy to see when parallel construction is necessary and legal. A deep cover DEA agent alerts law enforcement about a drug trafficking operation, and when law enforcement responds they must construct their case so as not to reveal that their tipoff came from an agent who is still undercover.

In the case of the DEA’s Special Operations Division and the NSA, the way the NSA collects information about U.S. citizens – based on Section 702 of the Foreign Intelligence Surveillance Act (FISA) – is controversial but legal. It has been upheld in court even after the breadth of its scope was revealed in the Snowden disclosures. And as long as local law enforcement make a legitimate traffic stop and establish probable cause for a vehicle search independently, the parallel construction is also legal.

What has proven to be controversial is how DEA agents instruct local law enforcement to construct their case. They tell them to omit any mention of the DEA’s Special Operations Division. That includes with lawyers, with prosecutors, in reports, in affidavits, and in courtroom testimony.

How the Practice Can Cause Cases to Fall Apart

This has caused some in the legal field to raise strong objections.

In a 2013 article published by Reuters, the Vice Chairman of the American Bar Association’s Criminal Justice Section, James Felman, says that for law enforcement to obscure or cover up how an investigation originally began would violate pre-trial discovery rules.

A New Jersey defense lawyer goes further and calls doing this unconstitutional. Anticipating the possibility that future court decisions might rule Section 702 unconstitutional, he also adds, “These are drug crimes, not national security cases. If you don’t draw the line here, where do you draw it?”

A federal prosecutor quoted in that same article highlights the fine line DEA agents walk between parallel construction and following the judicial process legally. He mentions one anecdote when he was preparing to bring a case to court. He asked a DEA agent how a certain investigation had begun. The DEA agent initially said it all started with a tip. When he asked him for the details the agent changed his story and said it started with information from the NSA.

The prosecutor pointed out that if he had constructed the case as having started from a tip and the judge found out that was inaccurate, the judge could have thrown out the case and the defendant would walk free. In this particular instance, the prosecutor lost confidence in the case because of the questionable tactics used by the DEA agent, and he never brought charges.