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DEA spying scandal claims are dominating even mainstream headlines this week. The Obama administration may once again attempt to claim the shocking infringement upon constitutional freedoms is nothing more than a phony scandal by Republicans, but they would be wrong again. The Libertarian wing of the GOP is already (and rightfully) vocally opposing the latest round of Constitution-infringing actions of federal agencies.
The Drug Enforcement Agency is surely comprised of many dedicated and patriotic agents who truly want to stem the flow of drugs onto city streets. As is usually the case, the fault can most likely be found behind the closed doors of administrators’ offices and within the wink and nod dictates sent from within the Obama administration.
A review of reportedly confidential documents by Reuters revealed that the DEA is using phone records and wiretaps to help start criminal investigations. At first glance, such actions appear to be standard law enforcement action. No one wants to see criminals roaming the streets of their neighborhood. However, the alleged actions of the US Drug Enforcement Administration also reportedly include agent coaching in order to cloak the activity in an untraceable manner.
The “law enforcement sensitive” documents reportedly originated from the Special Operations Division (SOD) of the DEA. This branch of the agency partners with a few dozen other agencies, including the IRS, CIA, FBI, and the Department of Homeland Security. The special Drug Enforcement Agency division was created during the 1990s to combat the illegal actions from the growing numbers of drug cartels. The special branch of the DEA started out with just about 24 employees, but has now grown to include several hundred staffers. Much of the work conducted by the SOD has been deemed classified. The exact location of the division’s offices in Virginia has not been revealed.
According to Reuters, the DEA Special Operations Division activities include directing law enforcement agencies around the country to hide how some investigations begin from defense attorneys and even judges and prosecutors. The “law enforcement sensitive” documents also reportedly state that federal agents are taught how to “recreate” the trail of the investigation in order to cover up where and how the launching information originated.
Those opposed to the recently discovered practice rightfully maintain that such practices violate the constitutional rights of a defendant to obtain a fair trial. If defense attorneys are unaware of the probable cause which prompted a search or arrest, and are not given access to witness statements, they cannot adequately research the case and prepare for trial. A review of the sources of exculpatory evidence could lead defense attorneys to unearth errors, mistakes, entrapment, or witness bias.
Harvard Law School professor and former federal judge Nancy Gertner had this to say about the DEA spying scandal:
“I have never heard of anything like this at all. It is one thing to create special rules for national security. Ordinary crime is entirely different. It sounds like they are phonying up investigations.”
Nancy Gertner’s conclusions affirm the slippery slope argument those who oppose NSA spying tactics have been making since Edward Snowden’s whistleblowing began. Gertner and some of her legal peers feel the US Drug Enforcement Agency Special Operations Division activities are even more “troubling” than the recently revealed NSA activities.
An excerpt from a document sent to DEA SOD agents reads:
“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function.”
DEA SOD  agents are also told to leave out the division’s involvement in any affidavits, courtroom testimony, discussions with prosecutors, and investigative reports, according to the documents reviewed by Reuters. The agents are instead directed to utilize “normal investigative techniques to recreate the information” which had been given to the DEA special unit.
The process of concealing the true origins of an investigation is called “parallel construction.” Approximately 12 current or former DEA agents who spoke with Reuters on the condition of anonymity confirmed they had used parallel construction during their careers with the federal agency. While most noted that they understood why those not in the law enforcement community might be concerned, they still defended the practice. A federal prosecutor in Florida recently became infuriated after learning from a DEA supervisor that a tip accredited to an informant actually stemmed from a NSA intercept.
Two US Drug Enforcement Agency senior officials who spoke anonymously on behalf of the federal department had this to say in response to the growing spying scandal:
“Parallel construction is a law enforcement technique we use every day. It’s decades old, a bedrock concept.”
The US Drug Enforcement Agency Special Operations Division offers multiple services to local, state, and federal law enforcement agencies. The SOD distributes tips from foreign NSA intercepts, domestic wiretaps, informants, and overseas policing agency partners, coordinates international investigations, and shares information via an enormous database that has been dubbed DICE.
The SOD DICE database is comprised of approximately 1 billion records. According to statements made by senior DEA officials, the vast majority of DICE information consists of Internet data and phone logs. The records inside the federal database were allegedly gathered legally via nationwide search warrants, arrests, and subpoenas executed by the US Drug Enforcement Agency.
Approximately 10,000 law enforcement agencies search the SOD DICE database on a regular basis. The current and former DEA agents who spoke with Reuters reportedly gauge SOD tips with about a 60 percent accuracy rate. One agent went on to say, “It was an amazing tool. Our big fear was it wouldn’t stay secret.”
Concealing the identity of an informant is one thing, but essentially lying to defense attorneys, prosecutors, and judges about the origins and development of a criminal case in another matter entirely. Established courtroom standards permit judges to examine sensitive information privately. Such a practice keeps classified information or a confidential informant’s identity private, without infringing upon constitutional rights or resorting to subterfuge. The concealment of government information and investigation sources should only be done on a very limited basis. The safety of an informant’s life or national security are legitimate reasons to conceal very specific information form the public, but not from the judges tasked with maintaining our fair trial system.