According to a new report, not only is the U.S. Drug Enforcement Administration providing information, like wiretaps and phone records, to law enforcement to help start investigations of Americans, but it is also coaching its agents to cover up such actions so it can’t be traced where this information initially came from.
Reuters reported reviewing confidential documents marked “Law Enforcement Sensitive” of the DEA’s Special Operations Division. This division includes partner agencies like the FBI, CIA, IRS and DHS, and was created in the 1990s in response to growing drug cartels.
In an article published nearly two years ago to the day in Time magazine, Derek Maltz, the special agent in charge of this division said, “Congress has given the DEA the capability and the authority to go after threats in sync with other law-enforcement partners.” This article was about the relationship between narcotics traffickers and terrorists.
The undated documents Reuters’ reviewed show how “federal agents are trained to ‘recreate’ the investigative trail to effectively cover up where the information originated.”
Here’s how such a tip would go down, according to a former federal agent:
“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.”
“I have never heard of anything like this at all,” Nancy Gertner, a Harvard Law School professor and former federal judge, told Reuters.
“It is one thing to create special rules for national security,” she continued. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”
Is working backwards to establish probable cause in an investigation Constitutional? And what of the potential violations of the right to a fair trial? Here’s some of what Reuters reported of legal opinions:
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.
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.”
In a separate article, Reuters detailed how this program through the DEA is different than some of those run through the National Security Agency, which was leaked by former government contractor Edward Snowden in June.
One differences, aside from the targets of investigations, include that the DEA’s SOD program uses a different database called DICE, which has about 1 billion records pulled together legally through subpoenas or warrants.
Some domestic wiretaps are started after a second investigation has begun as a result of information that was obtained from a previous court-ordered wiretap, Reuters reported in its initial article. Reuters also reported that because warrentless wiretapping of Americans is illegal, the citizenship of a target in a wiretap tip is generally vetted before it is forwarded to the SOD from foreign governments or other intelligence agencies. But, it noted a senior law enforcement official saying although “they do a pretty good job of screening, […] it can be a struggle to know for sure whether the person on a wiretap is American.”
Be sure to check out Reuters’ extensive story about this practice and its Constitutional challenges.