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Aug 07 2013

DEA Using Surveillance Data, Covering That Up

Though the Patriot Act and the FISA amendments were justified as necessary to stop terrorism, the reality is that they are more often used for mundane criminal investigations. Here’s a perfect example. The DEA is using massive amounts of surveillance data to launch drug investigations, but teaching local police to cover up where the information 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.

“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 drug dealers.

“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.”

This certainly should not surprise anyone. The Patriot Act authorized the use of “sneak and peek” warrants that allow law enforcement to break in and search a house or place of business without ever informing the target of the search that it took place. Between 2006 and 2009, sneak and peek warrants were used 15 times in terrorism investigations. They were used 122 times in fraud investigations. And they were used 1618 times in drug investigations.

12 comments

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  1. 1
    cry4turtles

    A short while back the NSA busted a house in Youngstown OH for selling bath salts. WTF!?

  2. 2
    daved

    No, it’s not a surprise. If the data are available, they will be used. It’s just irresistible.

    This whole gigantic NSA program is preposterous for its supposed ability to foil terrorism plots anyway. Such massive amounts of data are mostly only useful after the fact. After someone blows up a plane, or a train, or the Boston Marathon,, great, you’ve got all their emails to track down what they did, who they talked to, blah blah blah. But in most cases, it won’t get you out ahead of the attack.

  3. 3
    Chiroptera

    Yeah, this is another reason why “it’s only to fight terrorism” is such a bogus argument. It’s really easy to expand into other areas of law enforcement; in fact, isn’t that one of the usual conservative whines? That government programs always expand beyond their original intent?

    The argument is bogus for another reason to: after all, if the data exists, why can’t it be used to fight other kinds of crime? What makes “terrorism” so special that our security forces need extra latittude to spy on citizens, but other crimes are so “unspecial” that law enforcement can’t use the data? Either survelllance programs are good to stop and/or solve all crimes, or they are a danger to civil liberties regardless of the crime they are trying to stop.

  4. 4
    matty1

    That’s how it starts you tell yourself its just a little harmless data mining and you can control it, keep it to the weekends, only use it for terrorism. But before you know it the hit from getting one terrorist a year isn’t enough and you crave stronger doses. Next thing you know you’re addicted to injecting anti-terror powers into drug busts.

  5. 5
    bumperpuff

    Since the DEA and NSA claim that the information they use is secret it will be almost impossible to show standing in court cases. I bet it will also be impossible to get the NSA to reveal phone records etc. that would exonerate a defendant.

  6. 6
    raven

    Not surprising.

    The rule is, what people can do, they will do.

    After 9/11, it was obvious we were heading towards a police state. Not any more. It is here now.

  7. 7
    Synfandel

    @1 cry4turtles wrote:

    A short while back the NSA busted a house in Youngstown OH for selling bath salts. WTF!?

    “Bath salts” is the street name for a class of designer drug.
    http://en.wikipedia.org/wiki/Bath_salts_%28drug%29

  8. 8
    Francisco Bacopa

    This is similar to how the UK kept secret how much information they were getting from ULTRA. When they wanted to act on data from code breaking, they sent out spy planes, made phoney transmissions from nonexistent spies, and otherwise made it seem that they were getting their information from signals intelligence.

    IF course the UK was doing this in a life or death struggle against a nation-state in a declared war. In the US today it seems that the American People themselves are the enemy. I strongly suggest that everyone go watch the Colbert clip over at Mano’s site. The post is called “We are the Enemy”.

  9. 9
    sigurd jorsalfar

    @5 I don’t think standing will be the issue. If you are charged with a crime, you’ve got standing.

    The problem is that they are ‘phonying up’ the investigation in order to hide the fact that the evidence was obtained using the Patriot Act. It’s a form of ‘evidence laundering’ if you will. Fabricating the source of the evidence is problematic in itself, but it also means the accused won’t know where to look for exculpatory evidence. The prosecution doesn’t own the evidence or the witnesses. Accused persons have a right to review the evidence, both inculpatory and exculpatory, and to talk to witnesses. This right is effectively destroyed if the state is allowed to fabricate the evidence trail, because the accused has no idea where to look or who to talk to.

  10. 10
    cry4turtles

    Synfandel, I know what bath salts are. Guess it seemed I didn’t. I was just shocked when I saw NSA choppers in the air. Wasn’t it supposed to read DEA?

  11. 11
    maddog1129

    I’d be willing to bet money that, in the 15 instances where “sneak and peek” warrants were done in the terrorism investigations, the use of a regular warrant would have been just as successful.

  12. 12
    David C Brayton

    The part that really got to me is that obscuring the source is considered a basic, legitimate tactic. So, Sigurd at 9 said it best.

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