August 5th 2013
Documents obtained by Reuters have revealed that the US Drug Enforcement Administration has a secretive unit assigned to conducting unconstitutional surveillance techniques and transmitting the information to agencies across the country to aid in criminal investigations.
The documents show that these federal agents are trained to ” re-create ” investigations to cover up where the information originated. According to the documents, marked ” Law Enforcement Sensitive, ” the unit’s actions have been ongoing since 1994.
According to the Reuter’s Report this information is often kept from defense lawyers and even sometimes from the prosecution or presiding judge. This has been received by experts as being a clear violation of a defendant’s Constitutional right to a fair trial. This has the potential to be far more damning than the NSA snooping scandal.
Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011, and other experts told Reuters that the program sounds more troubling than the NSA’s bulk collection of domestic phone calls because it doesn’t target terrorists — instead, it targets common American criminals, primarily drug dealers, while potentially violating the defendants’ Constitutional right to a fair trial.
Furthermore, the NSA collects data to store and analyze it while the DEA program leads to convictions and jail sentences.
“It is one thing to create special rules for national security,” Gertner said. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”
The DEA Special Operations Division (SOD), a unit comprised of members of the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security, performs what’s called “parallel construction,” which involves disguising how an investigation began.
“Parallel construction is a law enforcement technique we use every day,” one official said, adding that it was “decades old, a bedrock concept” that was used to protect sources and investigative methods.
While most of “a dozen” of other agents interviewed by Reuters were said to have defended the tactics as “legal,” former DEA agent Finn Selander has compared it to a criminal activity.
“It’s just like laundering money – you work it backwards to make it clean,” Selander, who is now a member of the Law Enforcement Against Prohibition group, explained.
Meanwhile, lawyers, prosecutors and legal experts have been outraged by the report, saying that if the so-called “parallel construction” was indeed used for disguising how an investigation began it explicitly violates pretrial discovery rules.
Such practice “would not only be alarming but pretty blatantly unconstitutional,” Lawrence Lustberg, a New Jersey defense lawyer has said.
In particular, it would violate the defendants’ Constitutional right to a fair trial, since if they don’t know how an investigation really began, they cannot ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
By use of the SOD program the US government could also “skirt” the established court procedures, by which judges privately examine sensitive information (informant’s identity, classified evidence etc.) to determine whether the information is relevant to the defense – something which some lawyers find unacceptable.
“You can’t game the system. You can’t create this subterfuge. These are drug crimes, not national security cases. If you don’t draw the line here, where do you draw it?” said former federal prosecutor Henry E. Hockeimer Jr.
The US legal system is very sensitive to the way the evidence is handled, and if the defense or prosecution finds its source inappropriate, the case may be overturned.
An unnamed federal prosecutor said he refused to file charges in a Florida drug case after he learned a DEA agent “lied” to him about where the information came from – it was later revealed he had actually used a SOD tip based on an NSA intercept. The prosecutor said the fact of concealing the information source alone made him lose confidence in the investigation.
News of the DEA’s collusion with the NSA comes as pressure mounts for intelligence agencies and top government officials to reveal more information about the extent of domestic surveillance programs. While President Obama’s administration has broadly defended the NSA’s activities, Congress is divided on key laws that have enabled the NSA to justify programs like a phone surveillance dragnet that collects records on every call placed within the United States.
Part of the problem is that the public — and even Congress — doesn’t know the full extent of the NSA’s capabilities, or the legal justifications behind them. And despite several congressional hearings on domestic spying programs, top intelligence officials have obfuscated the full truth, leading some lawmakers to call for the resignation of Director of National Intelligence James Clapper.
When asked in June whether the NSA collected “any type of data at all on millions or hundreds of millions of Americans,” Clapper replied “not wittingly.” A leaked court order revealing that the NSA regularly asks Verizon for all metadata associated with its customers phone calls showed Clapper’s statement to be false.
Now, as Reuters has revealed, it appears the worst fears of some civil liberties advocates and government surveillance critics have been realized.
“When law enforcement agents and prosecutors conceal the role of intelligence surveillance in criminal investigations, they violate the constitutional rights of the accused and insulate controversial intelligence programs from judicial review,” ACLU deputy legal director Jameel Jaffer said today, regarding the DEA’s actions. “This is inappropriate, dangerous, and contrary to the rule of law.”