Bedrock Principles: The 4th Amendment and Parallel Construction

By A. G. Moore

 

US_Declaration_of_Independence_1823_Stone_Printing.jpg

Declaration of Independence. Heritage Auction Gallery on Wikimedia Commons. William Stone Engraving, 1823. Copyright Expired.

September, 2017

In 2013 I wrote a blog about parallel construction.  It was not a blog about grammar, but about law enforcement.  Recently I revisited the blog.  I wondered if the process had fallen into disuse, given the increased presence of body cams and dash cams.  This does not seem to be the case.  According to the Washington Post  and Wired, there may actually be an increase in the use of parallel construction.  This is because privacy laws have been relaxed and law enforcement has greater access to a broad array of information.

So what is parallel construction?  Read the blog and then ask yourself if this is a good thing.  Don’t think of it as something that will be used against a suspect you will never know.  Think of it as something that may be used against you, if you are a suspect. Do you feel more or less secure as a citizen who may be charged with a crime? Or do you feel that parallel construction tips the balance of power in favor of the government?

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Parallel Construction and the Fourth Amendment

 

August 7, 2013

In a 1985 speech at Georgetown University, Supreme Court Justice William J. Brennan declared, “the amended Constitution of the United States… draws sustenance from the bedrock principles of…the Magna Carta“. Sixteen years later, Supreme Court Justice, Sandra Day O’Connor, referred to the “bedrock principle of our Fourth Amendment jurisprudence”. And, in yet another assertion of bedrock 4th Amendment principles, California’s 6th Circuit Appeals Court cited them in ruling against the government in a privacy case. So,it’s understandable that I was more than a little surprised when I read this week about bedrock principles in a completely different context. A DEA agent referred to a bedrock concept of law enforcement: “recreating” events–parallel construction, he called it.

An interesting term, parallel construction.

It was described more fully by retired DEA agent, Finn Selande: “It’s just like laundering money,” Mr. Selande explained. “…you work it backwards to make it clean”. Funny, when I was a child my mother used to call that lying. And “recreating” the truth–isn’t that what got Nixon into trouble with Congress during the Watergate scandal? Only then, Congress had a different name for “parallel construction”: they called it obstruction of justice.

Reuters, which ran the DEA story, reported that a lot of agents admit they’ve used parallel construction over the years; some agents conceded that they could see why “…those outside law enforcement might be concerned”.

Mmmm…I wonder why they’d think that?

We all know that in order to stop someone on the street, a law enforcement officer has to have a reason; and in order to enter someone’s house, the officer needs more than that–a warrant, or an exigent circumstance. Of course, these barriers to enforcement are technicalities, pesky provisions written long ago into the 4th Amendment–the amendment that’s been in the news because of Snowden leaks and massive NSA data collection. Turns out, Reuters tells us, the NSA, DEA, FBI, CIA, Homeland Security and IRS are all working together–spying, collecting, disseminating information. This information they “funnel” to local law enforcement so that criminal investigations of Americans can be launched. Of course, technically, the whole process is unconstitutional, so it can never be admitted in court.

That’s where parallel construction and recreation come in. Voilà–a constitutional premise for an investigation is manufactured and the government’s case can proceed.

One troubling aspect of the institutional assault on 4th Amendment rights, for me (besides the fact that I’m not safe if the government can go around willy-nilly manufacturing the truth) is the mindset this truth bending implies. We, the people, have become distinct from those who enforce laws–laws that presumably exist for our welfare. Those on whom we place responsibility for protecting us, have come somehow to see themselves as separate from us.

I ask: if we are not unified–both those who defend the Constitution and those who are protected by it–then is the pact of government intact?

This is a democracy. We exist by consent of the governed–it says so in the Declaration of Independence. It is the principle upon which the Constitution is based–a bedrock principle of our nation. If those entrusted with the task of enforcement lose sight of this principle, perhaps they should think about looking for another line of work.

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