Domestic Law Enforcement Is Using NSA Intercepts To Prosecute Drug Offenders
To all you recreational drug users and dealers out there, the U.S. Drug Enforcement Administration (DEA) is listening. Well actually, it’s the NSA that’s listening and watching. But Reuters has uncovered a secret DEA unit that uses the information collected by NSA surveillance programs to launch criminal investigations of Americans—primarily drug dealers who pose no threat to national security—and then cover up where the investigation originated from by recreating it using normal investigative techniques:
…documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
It’s supposed to be unconstitutional for the government to spy on you without probable cause, which is exactly what the NSA dragnet does to Americans en masse. But the government says this is necessary to stop terrorist attacks from harming national security. Even if you agree with this premise, using surveillance programs to stop nonviolent drug crimes reaches an entirely new level of civil liberties violations. The constitution guarantees your right to a fair trial. But how can a trial be fair when investigators are lying about where the information to prosecute you came from?
Just consider the scope of the secret unit:
The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.
Today, much of the SOD’s work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked “Law Enforcement Sensitive,” a government categorization that is meant to keep them confidential.
“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.”
And apparently the program is used every single day:
Two senior DEA officials defended the program, and said trying to “recreate” an investigative trail is not only legal but a technique that is used almost daily.
A former federal agent in the northeastern United States who received such tips from SOD described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said.
After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.”
How on earth can it possibly be legal to use already controversial NSA intercepts to launch drug investigations and then turn around and cover up how the investigation began?
I guess it should come as no surprise that programs created under the guise of fighting terrorism are being used to prosecute the failed decades long war on drugs. It wouldn’t be the first time the war on terror has been used to execute the drug war but that doesn’t make it constitutional. It appears legal experts agree:
Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin “would not only be alarming but pretty blatantly unconstitutional.”
Lustberg and others said the government’s use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant’s identity or classified evidence, to determine whether the information is relevant to the defense.
“You can’t game the system,” said former federal prosecutor Henry E. Hockeimer Jr. “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?”
And therein lies the trouble with making exceptions to the constitution, even when it’s in the name of national security: It leaves open too much room for abuse. How long before NSA surveillance is used to prosecute sex workers or deport undocumented immigrants?