Another reason to mistrust the Surveillance State comes to us from Reuters, which reports that federal agents have been ordered to cover up a massive surveillance database accumulated by the DEA, even to the point of hiding it from courts and judges:
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, 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.
At least one legal expert and former federal judge says this program is even more disturbing than the fabled NSA super-surveillance project:
“I have never heard of anything like this at all,” said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.
“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.”
[…] “That’s outrageous,” said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. “It strikes me as indefensible.”
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?”
Which is not cool, and possibly not Constitutional. The document uncovered by Reuters “specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony.”
The DEA defends this unit, known as the Special Operations Division, by claiming it’s basically a “black box” that spits out vague tips, which are omitted from the investigative trail in a manner that protects the secrecy of the SOD without compromising prosecution or defense:
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.”
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”
One agent defended the SOD and investigative “reconstruction” by saying “It’s just like laundering money – you work backwards to make it clean.” That’s not exactly comforting to those who are worried about the rise of the surveillance state.
And the SOD is very definitely an appendage of the surveillance state, because one angry prosecutor learned from a DEA supervisor that contrary to misleading talk about “informants” in a Florida drug case, the tip “had actually come through the SOD and was from an NSA intercept.”
The SOD system includes yet another massive lint trap full of metadata, known as DICE. Records are said to be purged from this database after one year. Ten thousand law enforcement agents at federal, state, and local levels have access to this data.
Unlike the more nebulous benefits of the NSA spying programs, the SOD has some very high-profile successes to its credit, including a role in bagging notorious arms dealer Viktor Bout. But Reuters quotes current and former federal agents judging the accuracy of SOD tips as only 60 percent. It is said to be “a struggle to know for sure whether the person on a wiretap is American,” which is a major point of order, because U.S. law forbids warrantless wiretapping of American citizens.
Which leaves us to continue pondering the central question of the surveillance state debate: the harvesting and storage of data without specific accusations and court procedures. The system is hidden behind layers of obfuscation and secrecy; nobody gets to keep secrets except the watchmen. We’re being asked to take a great deal on faith, by an Administration with a heavy track record of abusing power and public trust. We want bad guys taken down, but it’s precisely at the beginning of the investigation that nervous Americans want assurances of extensive legal review, accountability, and due regard for the presumption of innocence. The public generally supports aggressive intelligence-gathering against criminal and terrorist targets, but they want to be certain those targets are carefully selected.
We can accept that some degree of secrecy is necessary to protect intelligence and law enforcement operations, but it’s a matter of degree… and when we reach the point where federal agents are lying to judges, prosecutors, and defense attorneys, our assumptions about privacy and due process are in danger of complete disintegration.
