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-Land of the Free
U.S. directs agents to cover up program used to investigate Americans
2013-08-05
From Rooters. If true this is fundamental. We're supposed to have a government that serves us, not that looks for ways to control and imprison us. A scrupulous government agency might indeed respect the barriers imposed by the Constitution. The current administration looks to be unscrupulous in multiple ways, and the administrations to come are likely to be worse.
WASHINGTON -- 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.

"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."
It's not QUITE like that. Yet. But the point is made: if you can hide how you got a tip on the defendant, what else are you hiding, Mr. Prosecutor? If you're lying to us about this, what else are you lying about? There's even a legal phrase that covers this, Mr. Prosecutor: "Falsus in unum, falsus in omnibus"...
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.
This is how the drug war has grown to threaten ordinary people...
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."
In other words, lie to the court...
A spokesman with the Department of Justice, which oversees the DEA, declined to comment.

But 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."
It's also called, "lie", "fraud", "dishonesty", and other words that can't be printed in a family blog...
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."

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.
Oh, really, we might be concerned about how you gather information and use it against citizens, keeping it all secret, lying to judges and attorneys, and using it for purposes other than for why you originally said you were going to use it? Whatever gave you that idea?
"It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.

Some defense lawyers and former prosecutors said that using "parallel construction" may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.
Wonder if the DEA has read the Constitution lately...
"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?"
You don't. That's the point.
Some lawyers say there can be legitimate reasons for not revealing sources. Robert Spelke, a former prosecutor who spent seven years as a senior DEA lawyer, said some sources are classified. But he also said there are few reasons why unclassified evidence should be concealed at trial.

"It's a balancing act, and they've doing it this way for years," Spelke said. "Do I think it's a good way to do it? No, because now that I'm a defense lawyer, I see how difficult it is to challenge."
No reasonable person is going to want national security information and sources put in the open. But as the man says, this is about drug crime, not national security. And what's to stop the "two dozen" agencies from doing this with other types of crime?
One current federal prosecutor learned how agents were using SOD tips after a drug agent misled him, the prosecutor told Reuters. In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.

"I was pissed," the prosecutor said. "Lying about where the information came from is a bad start if you're trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court." The prosecutor never filed charges in the case because he lost confidence in the investigation, he said.
So there's one honest prosecutor. Is he going to keep his job?
A senior DEA official said he was not aware of the case but said the agent should not have misled the prosecutor. How often such misdirection occurs is unknown, even to the government; the DEA official said the agency does not track what happens with tips after the SOD sends them to agents in the field.

The SOD's role providing information to agents isn't itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court.

The DEA has long publicly touted the SOD's role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don't accidentally try to arrest each other.

The unit also played a major role in a 2008 DEA sting in Thailand against Russian arms dealer Viktor Bout; he was sentenced in 2011 to 25 years in prison on charges of conspiring to sell weapons to the Colombian rebel group FARC. The SOD also recently coordinated Project Synergy, a crackdown against manufacturers, wholesalers and retailers of synthetic designer drugs that spanned 35 states and resulted in 227 arrests.

Since its inception, the SOD's mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit's annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.

Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE.

The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said.
So they say...
About 10,000 federal, state and local law enforcement agents have access to the DICE database, records show. They can query it to try to link otherwise disparate clues. Recently, one of the DEA officials said, DICE linked a man who tried to smuggle $100,000 over the U.S. southwest border to a major drug case on the East Coast.

"We use it to connect the dots," the official said.

Wiretap tips forwarded by the SOD usually come from foreign governments, U.S. intelligence agencies or court-authorized domestic phone recordings. Because warrantless eavesdropping on Americans is illegal, tips from intelligence agencies are generally not forwarded to the SOD until a caller's citizenship can be verified, according to one senior law enforcement official and one former U.S. military intelligence analyst.

"They do a pretty good job of screening, but it can be a struggle to know for sure whether the person on a wiretap is American," the senior law enforcement official said.

Tips from domestic wiretaps typically occur when agents use information gleaned from a court-ordered wiretap in one case to start a second investigation.

As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.
Memo to defendants: go to trial and the charges will be dropped...
Current and former federal agents said SOD tips aren't always helpful - one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away.

"It was an amazing tool," said one recently retired federal agent. "Our big fear was that it wouldn't stay secret."

DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.
Of course not. It's secret, but I can reproduce the conclusion: "our internal review shows that our program is okay. Honest. Trust us."
Posted by:Steve White

#13  Yes, it is a war on your choice to consume, Bright Pebbles. But so are product purity laws. I have in my possession a reprint of Things A Lady Would Like To Know Concerning Domestic Management, the second printing of which is dated 1875 by the publishing house Hutchinson of London. The very first section is titled "Adulterations", and contains standard tests by which the housewife can learn whether her ingredients have been adulterated, though the Parliamentary "Sale of Food and Drugs Act" had been passed some years before: bread by alum; cayenne pepper by brick dust, red wood dust, and red lead, among other possibilities, requiring a good microscope to detect; sausages with things too disgusting to mention, though we all have read about the crusade to clean up the meat packing industry in school, and needn't go further into it here; and so forth. There are things that are not good to ingest, though an individual might want to ever so badly, and sometimes it is a good thing for government to intervene.

It is not, after all, that government is itself bad, but that too much government is as bad as too little.

And separately, do remember that the opium trade is controlled by the Taliban and Al Qaeda/Afghanistan jihadis, and Hizb'allah and Al Qaeda/North Africa are entwined in the Hispano-American drug tradethat badanov has been chronicling in these pages. So every time you exercise your freedom to imbibe, you are funding the jihad against your country and mine. And every time you agitate for the cartels' freedom to sell you that which you desire to buy, you are surrendering more deeply to the expansion of the caliphate.

Nowadays it is opium, etc. that is the opiate of the people.
Posted by: trailing wife   2013-08-05 22:39  

#12  The War on drugs, is an extension on the war on your liberty to choose what to consume.

It's a Bigger Big gulp ban.
Posted by: Bright Pebbles   2013-08-05 19:55  

#11  In all honesty, I used to be extremely anti-drug. But the war on (some) drugs has taken far too large atoll on fundamental liberty, expansion of government, and entrenchment of power with bureaucrats and police.

Time to declare victory and end it, and dismantle the DEA back to a small core force that assists local law enforcement and a proper border security agency.
Posted by: OldSpook   2013-08-05 19:53  

#10  How about bringing back alcohol prohibition too? that worked a treat..

You know, Bright Pebbles, England's own Anthony Trollope commented on the drinking habits of Americans of all ages and stations... not to mention the common practice of paying Irish immigrant workers in alcoholic beverages rather than actual money. As a result of Prohibition, consumption of alcohol was down significantly across all segments of the population. And, given that there had been a trend of criminal gangs being concentrated in whatever was the latest population of immigrants throughout the nineteenth century, that this trend continued into the early twentieth is not really a revelation.

In summary, Prohibition did not significantly change the behaviour of criminal gangs, but did significantly impact per capita alcohol consumption, and radically decreased -- post-Prohibition, at least -- the availability of distilled alcohols cut with methanol , etc, a standard problem in the drinking establishments of working men and the poor in both Britain and America until purity laws came into vogue on both sides of the Atlantic.
Posted by: trailing wife   2013-08-05 19:36  

#9  What's the German for "it's for the children"?

How about bringing back alcohol prohibition too? that worked a treat..
Posted by: Bright Pebbles   2013-08-05 19:07  

#8  Might also impact all those selective enforcement options.
Posted by: Ebbang Uluque6305   2013-08-05 18:58  

#7  Then you're gonna have kids in junior high school shooting smack before they go to school.

Wouldn't it be better to just secure the border? Oh, right. That would impede the flow of new Democrat votes and cheap labor into the country.
Posted by: Ebbang Uluque6305   2013-08-05 18:57  

#6  Ending drug prohibition would cut-off 95% of funds AND cut the amount you need to spend on police.
Posted by: Bright Pebbles   2013-08-05 17:24  

#5  I have substantial qualms about prosecutors and investigators hiding evidence from judges and juries. That sort of thing gets to be contagious.

Fair enough. Now we're discussing the nub of the thing, Dr. Steve, and I quite agree.
Posted by: trailing wife   2013-08-05 14:13  

#4  I have no qualms going after narco-terrorists. I have no qualms going after Americans who engage in the drug trade.

I have substantial qualms about prosecutors and investigators hiding evidence from judges and juries. That sort of thing gets to be contagious.
Posted by: Steve White   2013-08-05 14:04  

#3  Given how Hizb'allah, al Qaeda in North Africa, in Yemen, in Pakistan, in Afghanistan and various other incarnations are entwined with the drug trade -- both as cover and as one of many criminal fundraising efforts for jihad -- I'm not sure this is unjustified. Here at Rantburg Chris Covert's series on the drug war in Mexico is posted on page 1 (War on Terror) for exactly that reason. And, while I am not at all keen on this level of observation and intrusion into the doings of the innocent (anybody watching me is going to be bored to tears -- "Oh Gawd, not another nap! Does that woman actually ever do anything?!" Sorry guys -- not really, no.)

Choke off the drug trade, and remove a significant funding source for the jihadis -- I'm all for that. Let them fight with the Russian and Romanian mafiyas for the theft of credit card numbers, and see how far that gets them, now that the Gulf oil money looks like it will soon start drying up.
Posted by: trailing wife   2013-08-05 14:02  

#2  Who is the enemy?
Posted by: Iblis   2013-08-05 10:53  

#1  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,

SOD ? Please gag me.

And the "partners"....never vector taskings on US Persons right ?
Posted by: Besoeker   2013-08-05 09:29  

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