John Shiffman and Kristina Cooke of Reuters report that a secretive Drug Enforcement Administration (DEA) unit is handing out "intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans," and then lying about how the investigations begin.
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 th an 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.
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 just like laundering money — you work it backwards to make it clean," Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, told Reuters.
Gertner, the former federal judge, noted that she has "never heard of anything like this at all."
Here's how Rick Unger of Forbes broke it down:
So secretive is the program, SOD requires that agents lie to the judges, prosecuting attorneys and defense attorneys involved in a trial of a defendant busted as a result of SOD surveillance—a complete and clear violation of every American’s right to due process, even when that American is a low-life drug dealer.
Two senior DEA officials defended the program to Reuters, saying that "recreating" an investigative trail is a legal technique that is used almost daily.
But legal experts declared shenanigans since the practice appears to violate pretrial discovery rules by bypassing warrants and then burying evidence that could prove useful to criminal defendants.
— Jesselyn Radack (@JesselynRadack) August 5, 2013
Lawrence Lustberg, a New Jersey defense lawyer, told Reuters that the official concealment of the circumstances under which cases begin "would not only be alarming but pretty blatantly unconstitutional."
One prosecutor told Reuters that during a Florida drug case he was handling, a DEA agent told him the investigation into an American began with an informant tip only to find out it began through the SOD and from an NSA intercept.
"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," he said, adding that he never filed the case because he lost confidence in the investigation.
One recently retired federal agent described it as an "an amazing tool," noting that the DEA's big fear "was that it wouldn't stay secret." But like the NSA's bulk collection programs, it has now been exposed.
The question now is what will be done to rein in the systematic and questionable use of government surveillance.
"You can't game the system," former federal prosecutor Henry E. Hockeimer Jr. told Reuters. "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?"
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