Level Two Lies: Because The FBI Can’t Trust Prosecutors

When the existence and capacity of Stingrays came to light, you might have thought all hell would break loose.  After all, it wasn’t just the public that was kept in the dark by this monumental breach of privacy. It was judges too.

The concealment of the use of Stingray is one thing. The deceptive claim that Stingray is little more than a trap and trace device is another.  But these emails go to a different place.  It’s not just the government concealing their cool, secret devices from the public.  Not even from criminal defense lawyers.  They are lying to the courts about using them.

In the past, and at the request of the U.S. Marshalls [sic], the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as “received information from a confidential source regarding the location of the suspect.” To date this has not been challenged, since it is not an integral part of the actual crime that occurred.

They lied. They lie. The U.S. Marshals asked them to lie, and they lie.  They use Stingray, but they put in their reports and probable cause applications they “received information from a confidential source,” and it is a bold-faced, total, complete, absolute lie.

Their beloved, trusted, good guys lied to them, and they just didn’t care. Was it the “lies are an important aspect of law enforcement” trope they internalized when cops lied to perps? Was it that they had no choice, since they certainly weren’t going to start believing defendants rather than law enforcement? So what if video conclusively proved that cops, sometimes, beat and killed innocent people for no reason, a reality they denied from the bench forever because “why would a cop do such a thing?”  Great question, and yet, there it was, on video, with shocking regularity. There may have been no good answer to the “why?”, but there was no doubt they did.

The outrage silence from the bench is deafening.

No judge has yet offered a good explanation for why it’s acceptable to them to be the patsy. A few shrug. As if it’s all part of the big game of law.  And as much as they refuse to admit it, they too are part of the system designed to win the “end game,” the war on crime. If the outcome is “justice,” then what difference does it make how the sausage is made?

The rationalization for the concealment, the lie, is to keep knowledge of this tool from “the criminal element.”  You know, criminal defense lawyers and such.

They even had a cool name for the mechanics of lying to the court, and incidentally to the defense. Parallel construction.  The manufacture of a false but acceptable explanation of how law enforcement came into possession of information and evidence that conceals its true source from outsiders, including the judge. From a training video:

Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community. If they find Bin Laden’s satellite phone and then pin point his location, they don’t have to go to a court to get permission to put a missile up his nose.

We are bound, however, by different rules.

Our investigations must be transparent. We must be able to take our information to court and prove to a jury that our bad guy did the bad things we say he did. No hiding here. However, we are also bound to protect certain pieces of information so as to protect the sources and methods.

To use it….we must properly protect it.

But one piece of this conspiracy to conceal “sources and methods” from prying eyes remained somewhat problematic.  Even if judges didn’t mind being lied to, being denied the trust of their beloved agents, who would never treat them like fools if it wasn’t for the greater good, what about the prosecutors?  Judges might not be reliable members of Team Law Enforcement, but surely prosecutors could be trusted.

As Brad Heath reveals at USA Today, the FBI didn’t trust prosecutors any more than judges. It would appear that they were a team unto themselves, and while they were happy to enjoy the good graces of zealous prosecutors and kindly judges, they were no more inclined to tell prosecutors the truth than judges. Hell, not even lesser agents were sufficiently trusted to be let in on the team secrets.

[A]n official warned agents in Minneapolis that the FBI’s Engineering Research Facility — where some of the bureau’s most sophisticated tech secrets are hatched — had “expressed concerns about Tech Agents revealing technical details to Case Agents and especially to AUSAs,” using the acronym for assistant U.S. attorneys. “There have been several instances of AUSAs becoming familiar with our technology, then resigning and becoming defense lawyers.” (Emphasis gleefully added.)

While revealing what was happening inside the onion might have worked for a little while, certainly some prosecutor would eventually turn to the dark side, become a defense lawyer, and spill the beans.  Then all the criminals would know, and the world would collapse into criminal chaos. They certainly weren’t about to let that happen, because they are the good guys, protecting us from evil.

That approach was “fairly consistent with FBI policy,” said Michael Tabman, the former head of the FBI’s Minneapolis field office. “The point is that there’s usually no need for the case agents or the prosecutors to know how something was done.”

Still, some former prosecutors said they found it troubling that agents would be unwilling to share technical details — particularly in eavesdropping cases that require extensive consultations with Justice Department attorneys. “The fact that somebody may at some point go over to the other side is not a legitimate basis to withhold relevant information,” said Rachel Paulose, who was Minnesota’s U.S. attorney from 2006 to 2008.

In a weird sense, this may well bring some comfort to judges who felt left out of the secret world of law enforcement, their feelings hurt by the sense that the same agents they trusted and, maybe a little, covered for when they were about to get their lungs ripped out on cross-examination. At least they’re not alone on the outside of truth.

After all, if they didn’t trust the prosecutors, it makes it more understandable and palatable that they wouldn’t trust judges. And misery loves company. And, well, there is no shortage of aphorisms to cover up the fact of law enforcement rationalizations of lying to everyone, from defense to prosecution and judges and juries in the middle, under the committed belief that their lies are somehow better than anyone else’s lies.

That this rationalization also happens to do a spectacular job concealing that a group within our midst, armed with tools, weapons and extreme authority, has avoided legitimate oversight, doesn’t disturb anyone enough to do more than the occasional “tsk.”  Rachel Paulose calls it “troubling.” And everyone then goes about their business, just as they did before.

9 thoughts on “Level Two Lies: Because The FBI Can’t Trust Prosecutors

  1. John Barleycorn

    Speaking of parallel you probably could have picked up a few Captain Beefheart and the Magic Band albums if would have remembered to attend a few anniversary parties for 2001: A Space Odyssey earlier this month.


    Just saying…

  2. losingtrader

    Regarding abuse of Stingrays, perhaps the penalty should be the same treatment Steve Irwin received?

  3. Joey Walnuts

    In an article about “Stingrays” it would have been a good idea to define what a Stingray is. Clearly you are worked up about something, and maybe one day we’ll know what it is.

    1. SHG Post author

      Aside from this being a law blog, where readers already know about such things, a curious reader whose level of knowledge falls below the level necessary to understand that content could always click on the link in the post, included just in case someone happens to read who lacks the basics and need some remedial assistance. Or they could bitch in the comments about their stupidity being my fault.

    2. Myles

      Most people don’t blame others for their ignorance, particularly when they could have taken the few moments needed to leave a comment proclaiming their ignorance and used it instead to be slightly less so. But you’re not most people, are you.

  4. Joey Walnuts

    Hey, genius, there’s no link in the blog entry that defines “Stingray.” Give it a try. You’re free to write your blogs however you want; but if you want folks to understand what you’re writing about (and there will be some who don’t know the meaning of a particular term of art), take a moment to define it. You’re no longer an attorney–you’re an attorney/journalist now.

    1. SHG Post author

      I would ordinarily start by admonishing you to use the reply button, because you’re not special. But clearly, you are special. Has it occurred to you that I don’t want anyone as stupid as you reading what I’m writing? Nah, because you’re special.

      Then again, for someone who feels compelled to tell me how I’m doing it all wrong, you keep coming back. Maybe I am a genius. Either way, if you don’t like it, don’t read, but don’t complain that I haven’t dumbed it down sufficiently to meet your personal needs. Problem solved.

  5. Pingback: Is “Under No Circumstances” Acceptable, Judge? | Simple Justice

  6. Pingback: FBI G-Men: More Secret Agent than Special Agent

Comments are closed.