Washington: A secretive US Drug Enforcement Administration (DEA) unit is funnelling 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 defence 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 do not 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 programme sounds more troubling than recent disclosures that the National Security Agency (NSA) has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA programme 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 phoneying up investigations.”
Two senior DEA officials defended the programme, 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 north-eastern US who received such tips from the Special Operations Division (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 “parallel construction”. Some defence 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 pre-trial discovery rules by burying evidence that could prove useful to criminal defendants.
“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 programme 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 defence.
“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 it?”
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.
Wiretap tips forwarded by the Sod usually come from foreign governments, US intelligence agencies or court-authorised 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 US 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 investigation.
As a practical matter, law enforcement agents said they usually do not 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 are not always helpful — one estimated their accuracy at 60 per cent. 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 but they declined to provide Reuters with a copy of their most recent review.
