NC readers are presumably a jaded lot. But if you harbored any doubts as to the operation of the rule of law in this country, this post and its predecessor, on how police can and in many states do grab personal property based more or less on their own say-so, should disabuse you of any lingering doubts on that front.
In a weird but more disturbing analogue to chain of title abuses, where banks would forge signatures and fabricate documents to remedy the failure to transfer assets properly to securitization trusts, Reuters reported today that the Drug Enforcement Agency would doctor up where it got evidence from so it could use it in court. Now why would the DEA bother to go to all that trouble? Chorus: Because if a decent defense lawyer found out where it came from, it would in most cases be inadmissible.
Of course, Reuters does not know that for a fact, so it can’t say that. But anyone with an operating brain cell can see through this practice. First, the key bits of the Reuters account:
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.
So we appear to have a troubling domestic analogue to the NSA overreach (and better yet, sharing of information from “intelligence intercepts”) and aggressive scrubbing of where the info came from. And the experts are duly alarmed (emphasis ours):
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….”It sounds like they are phonying up investigations.”
Oh, and how do they keep this sort of operation out of the public’s purview? By classifying it. Yes, sports fans, domestic law enforcement operations are now given state secret status. Again from Reuters:
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.”
And natch, the people involved in this sort of thing have all the right Orwellianisms to convince themselves that this evidence-history-doctoring is perfectly kosher. It’s called “parallel construction” and the DEA sorts report that it’s a perfectly routine practice:
“Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”….
“It’s just like laundering money – you work it backwards to make it clean,” said Finn Selander, a DEA agent from 1991 to 2008.
The kindest thing some attorneys could say about it that the practice might be OK to establish probable cause for an arrest. Many seemed to regard any use as unacceptable. Ars Technica describes the ACLU’s critique (they’ve issued a formal statement as well as giving interviews):
Not surprisingly, those in the legal community are shocked that this type of wanton data sharing goes on unchecked.
“There’s nothing that allows lying to judges about the source of information in a criminal case,” Jennifer Granick, an attorney and the director of Civil Liberties at Stanford University’s Center for Internet and Society,
And troublingly, this DEA unit is funneling its massaged information to law enforcement officials at all levels of government:
Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations….; 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.
Do you notice all the caveats? “The SOD offers at least three services”…”the majority of the records consist of phone log and Internet data gathered legally…” So not only has Reuters uncovered that international information, which was collected by God only knows what means, is being used domestically, but the article tacitly admits that only a “majority” or the information in a ginormous database was gathered permissibly.
It was bad enough when we thought we knew about America’s star chambers, such as Obama’s position that he could kill any “suspected terrorist” and that the US engaged in extraordinary renditions and torture, um, enhanced interrogation. Now we learn of even more widespread and disturbing domestic practices. And this is only the part we’ve been permitted to see. Just imagine what else goes on.