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.