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Abstract

The recent disclosures of secret U.S. government surveillance programs have brought to the forefront how intelligence agencies should manage the gathering and analysis of intelligence collected and when and how best to pass that information on to law enforcement. What is first collected for national security purposes can now potentially be used in a criminal trial. Law enforcement agents are said to utilize “parallel construction” to hide the original source that initiated the criminal investigation and develop their own evidence independent from this original source. Since the “wall” between intelligence agencies and law enforcement agencies fell down post-9/11 and intelligence information is now provided to law enforcement, should defendants have the right to review this evidence and are they entitled to this information (e.g. NSA wire intercepts) via discovery obligations? This article explores the constitutionality of “parallel construction,” the relationship between the intelligence community and law enforcement, and whether the non-disclosure of how a criminal investigation was initiated constitutes a violation of a defendant’s right to discovery pre-trial and right to a fair trial. Currently, Classified Information Procedures Act (CIPA) procedures are in place to protect against the disclosure of classified information while at the same time ensuring the defendant a right to a fair trial by having the judge in the case review the evidence ex parte and determine whether it should be disclosed to the defendant in redacted form (thereby fulfilling the prosecutor’s discovery obligations). This article argues that the procedures put in place, CIPA and Federal Rule of Criminal Procedure 16, adequately protect the defendant’s right to discovery and right to a fair trial, but public concerns as to law enforcement’s use of intelligence information, which bring to the forefront the consequences of intelligence sharing, are well founded and these intelligence sharing regulations should be narrower in scope.

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