Through shocking new revelations from Reuters today, we’re learning how the Drug Enforcement Administration (DEA) uses information collected from secret wiretaps, databases and informants to construct its cases and then often lies to judges and prosecutors about where the evidence came from:
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.
The ACLU says this practice violates Americans’ right to fair trials:
“The DEA is violating our fundamental right to a fair trial,” said Ezekiel Edwards, director of the American Civil Liberties Union’s Criminal Law Reform Project. “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. 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.”
“When law enforcement agents and prosecutors conceal the role of intelligence surveillance in criminal investigations, they violate the constitutional rights of the accused and insulate controversial intelligence programs from judicial review,” said Jameel Jaffer, ACLU deputy legal director. “Effectively, these intelligence programs are placed beyond the reach of the Constitution, where they develop and expand without any court ever weighing in on their lawfulness. This is inappropriate, dangerous, and contrary to the rule of law.”
Amazingly, the DEA’s spying program, run through a unit called the Special Operations Division (SOD) actually seems like it might have less oversight and fewer checks on it than the ones that NSA leaker Edward Snowden has revealed in recent weeks. From a companion explainer piece that Reuters published comparing the two (with key parts bolded by me):
Disclosure to the accused
NSA: 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 a court filing last week, prosecutors said they will now notify defendants whenever the NSA phone-records database is used during an investigation.
SOD: 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, former prosecutors and judges say the practice prevents defendants from even knowing about evidence that might be exculpatory. They say it circumvents court procedures for weighing whether sensitive, classified or FISA evidence must be disclosed to a defendant.
NSA: Congressional leaders and intelligence committee members are briefed on the NSA’s classified programs. The Foreign Intelligence Surveillance Court reviews and approves warrants for domestic eavesdropping.
SOD: DEA officials who oversee the unit say the information sent to law enforcement authorities was obtained through subpoena, court order and other legal means. A DEA spokesman said members of Congress “have been briefed over the years about SOD programs and successes.” This includes a 2011 letter to the Senate describing the DICE database. But the spokesman said he didn’t know whether lawmakers have been briefed on how tips are being used in domestic criminal cases.
For the past month, due to Snowden’s revelations, the country has already been in the midst of an intense discussion about the government’s capabilities to surveil the communications of American citizens. Now that it’s being highlighted that the secret surveillance goes beyond the NSA and is being conducted by other agencies like DEA without effective oversight, it seems likely that the debate will only continue to intensify.
I wonder to what extent the DEA’s bad behavior here will help to sway voters’ and legislators’ attitudes about the overarching drug prohibition laws that are meant to justify the agency’s existence. As a drug policy reformer, I certainly hope that these specific revelations will embolden members of Congress to exercise more oversight of the agency’s activities generally, and will lead to a scaling back of its operations.