U.S. To Review DEA Unit That Hides Use Of Intel In Crime Cases
By John Shiffman and David Ingram
(Reuters) - The Justice Department is reviewing a U.S. Drug Enforcement
Administration unit that passes tips culled from intelligence intercepts,
wiretaps, informants and a large telephone database to field agents, White
House Press Secretary Jay Carney said Monday.
Reuters reported Monday that agents who use such tips are trained to
"recreate" the investigative trail to effectively conceal the DEA unit's
involvement from defense lawyers, prosecutors and even judges, a policy
many lawyers said could violate a defendant's right to a fair trial.
Federal drug agents call the process of changing the true genesis of an
arrest "parallel construction," according to a training document.
Although the DEA program may use legal means to collect and distribute the
tips, critics say that by hiding the origin of a case, defendants may not
know about potentially exculpatory evidence.
"It's my understanding that the Department of Justice is looking at some
of the issues raised in the story," Carney said during his daily briefing
at the White House on Monday.
Carney referred reporters to a Justice Department spokesman, who confirmed
that a review was under way, but declined further comment.
In an interview with Reuters last month, two senior DEA officials defended
the program, saying it has been in place since the late 1990s, has been
reviewed by every Attorney General since then, and is perfectly legal. One
DEA official said "parallel construction" is used every day by agents and
police nationwide and is "a bedrock concept."
The program, run by DEA's Special Operations Division, differs in several
respects from National Security Agency activities revealed by former NSA
contractor Edward Snowden. Among these is disclosure to the accused.
Collection of domestic data by the NSA and FBI for espionage and terrorism
cases is regulated by the Foreign Intelligence Surveillance Act. If
prosecutors intend to use FISA or other classified evidence in court, they
issue a public notice, and a judge determines whether the defense is
entitled to review the evidence. In the DEA's case, a document reviewed by
Reuters shows that federal drug agents are trained to "recreate" the
investigative trail to conceal the SOD's involvement. Defense attorneys say
the practice prevents defendants from even knowing about evidence that
might help their cases.
In a statement, the NSA said that it cannot use the telephone database
program exposed by Snowden for law enforcement purposes. However, the NSA
said that it does coordinate with law enforcement.
"This coordination frequently includes sanitizing classified information so
that it can be passed to personnel at lower clearance levels in order to
meet their operational requirements," the NSA statement said. "If the
Intelligence Community collects information pursuant to a valid foreign
intelligence tasking that is recognized as being evidence of a crime, the
intelligence community can disseminate that information to law enforcement,
While the NSA activities are aimed at terrorists, the SOD program focuses
on drug dealers and money launders. That distinction troubles some civil
libertarians, who fear secretive measures designed to target terrorists are
being used to catch ordinary criminals.
Jerry Cox, president of the National Association of Criminal Defense
Lawyers (NACDL), said defense lawyers "long feared that overbroad national
security policies would become the norm for all criminal prosecutions and
today we know our concerns were not unfounded."
Ezekiel Edwards, director of the American Civil Liberties Union's Criminal
Law Reform Project, said the SOD procedures violate the fundamental right
to a fair trial.
"When someone is accused of a crime, the Constitution
guarantees the right to examine the government's evidence, including its
sources, and confront the witnesses against them," he said. "Our due
process rights are at risk when our federal government hides and distorts
the sources of evidence used as the basis for arrests and prosecutions."
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Source = U.S. To Review DEA Unit That Hides Use Of Intel In Crime Cases
Exclusive: U.S. Directs Agents To Cover Up Program Used To Investigate
(Reuters) - 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
"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 SPECIAL OPERATIONS DIVISION
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."
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
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
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
"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.
A QUESTION OF CONSTITUTIONALITY
"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
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."
CONCEALING A TIP
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.
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
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
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.
SOD'S BIG SUCCESSES
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.
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.
"AN AMAZING TOOL"
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
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.
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.
Source = U.S. directs agents to cover up program used to investigate Americans
See also - DEA Special Operations Division Covers Up Surveillance Used To Investigate Americans: Report
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