DEA goes ROGUE using NSA data...and more...and worse....

[Peter Lemkin]

Exclusive: U.S. directs agents to cover up program used to investigate Americans

By John Shiffman and Kristina Cooke




WASHINGTON | Mon Aug 5, 2013 3:25pm EDT

(Reuters) - 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."
THE SPECIAL OPERATIONS DIVISION
The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.
Today, much of the SOD's work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked "Law Enforcement Sensitive," a government categorization that is meant to keep them confidential.
"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."
A spokesman with the Department of Justice, which oversees the DEA, declined to comment.
But two senior DEA officials defended the program, 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 northeastern United States who received such tips from 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.
"PARALLEL CONSTRUCTION"
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."
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.
"It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.
Some defense 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 pretrial discovery rules by burying evidence that could prove useful to criminal defendants.
A QUESTION OF CONSTITUTIONALITY
"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 program 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 defense.
"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.
"It's a balancing act, and they've doing it this way for years," Spelke said. "Do I think it's a good way to do it? No, because now that I'm a defense lawyer, I see how difficult it is to challenge."
CONCEALING A TIP
One current federal prosecutor learned how agents were using SOD tips after a drug agent misled him, the prosecutor told Reuters. In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.
"I was pissed," the prosecutor said. "Lying about where the information came from is a bad start if you're trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court." The prosecutor never filed charges in the case because he lost confidence in the investigation, he said.
A senior DEA official said he was not aware of the case but said the agent should not have misled the prosecutor. How often such misdirection occurs is unknown, even to the government; the DEA official said the agency does not track what happens with tips after the SOD sends them to agents in the field.
The SOD's role providing information to agents isn't itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court.
The DEA has long publicly touted the SOD's role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don't accidentally try to arrest each other.
SOD'S BIG SUCCESSES
The unit also played a major role in a 2008 DEA sting in Thailand against Russian arms dealer Viktor Bout; he was sentenced in 2011 to 25 years in prison on charges of conspiring to sell weapons to the Colombian rebel group FARC. The SOD also recently coordinated Project Synergy, a crackdown against manufacturers, wholesalers and retailers of synthetic designer drugs that spanned 35 states and resulted in 227 arrests.
Since its inception, the SOD's mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit's annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.
Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE.
The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said.
About 10,000 federal, state and local law enforcement agents have access to the DICE database, records show. They can query it to try to link otherwise disparate clues. Recently, one of the DEA officials said, DICE linked a man who tried to smuggle $100,000 over the U.S. southwest border to a major drug case on the East Coast.
"We use it to connect the dots," the official said.
"AN AMAZING TOOL"
Wiretap tips forwarded by the SOD usually come from foreign governments, U.S. intelligence agencies or court-authorized 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 U.S. 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 don't 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 aren't always helpful - one estimated their accuracy at 60 percent. 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. They declined to provide Reuters with a copy of their most recent review.

[Jan Klimkowski]

"PARALLEL CONSTRUCTION"
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."
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

Institutionalised corruption.

In the service of the Volkland Security State.

[Peter Lemkin]

AMY GOODMAN: The Justice Department has begun reviewing a controversial unit inside the U.S. Drug Enforcement Administration that uses secret domestic surveillance tactics, including intelligence gathered by the National Security Agency, to target Americans for drug offenses. According to a series of articles published by the Reuters news agency, agents are instructed to recreate the investigative trail in order to conceal the origins of the evidencenot only from defense lawyers but also sometimes from prosecutors and judges. DEA training documents instruct agents to even make up alternative versions of how such investigations truly begin, a process known as "parallel construction."
On Monday, White House Press Secretary Jay Carney was asked about the Reuters investigation.

PRESS SECRETARY JAY CARNEY: It's my understanding, our understanding, that the Department of Justice is looking at some of the issues raised in the story. But for more, I would refer you to the Department of Justice.

AMY GOODMAN: The unit of the DEA that distributes the secret intelligence to agents is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. The unit was first created two decades ago, but it's coming under increased scrutiny following the recent revelations about the NSA maintaining a database of all phone calls made in the United States. One former federal judge, Nancy Gertner, said the DEA program sounds more troubling than recent disclosures that the NSA has been collecting domestic phone records. She said, quote, "It is one thing to create special rules for national security. Ordinary crime is entirely different. It sounds like they are phonying up investigations."
For more, we're joined by the reporter who broke this story, John Shiffman, correspondent for Reuters, which published his exclusive story Monday, "U.S. Tells Agents to Cover Up Use of Wiretap Program."
Welcome to Democracy Now!, John. Why don't you start off by just laying it out and what exactly this cover-up is.
JOHN SHIFFMAN: Thanks very much for having me.
Well, my colleague Kristina Cooke and I spoke with about a dozen or two dozen agents and obtained some internal documents that showed that what federal agents, not just DEA agents but other agents who work with the DEA and do drug investigationswhat they're doing is, is they are startingthey are claiming that their investigations start, say, at step two. They are withholding step one from the investigations. And, I should say, it's not just NSA intercepts. It's informant information, information obtained from court-ordered wiretaps in one case, and using those for information in a second case. They also have a large database of phone records. Whenever the DEA subpoenas or does a search warrant and gets phone records for someone suspected of involvement in drugs or gang involvement, they put all those numbers into one giant database they call DICE, and they use that information to compare different cases. All of the collection isseems perfectly legitimate, in terms of being court-ordered. What troubles some critics is the fact that they are hiding that information from drug defendants who face trial. The problem with that is thatis that these defendants won't know about some potentially exculpatory information that may affect their case and their right to a fair trial.
AMY GOODMAN: So explain exactly how this information is being hidden from judges, prosecutors and sometimes defense attorneys, as well.
JOHN SHIFFMAN: Sure. Well, just to give an example, through any of these four different ways, including the NSA intercepts, the DEA's Special Operations Division will send the information to a DEA agent in the field or a FBI agent or an ICE agent or state policeman, and they'll give him the information. Then they'll say, "Look, you know, we understand that there will be a truck going to a certain park in Texas at a certain time. It's a red truck. It'll be two people involved." And the state trooper or the DEA will find you reason to pull the truck over, say for a broken tail light or for speeding, that sort of thing. And, lo and behold, inside the trunk they'll find, you know, a kilo of cocaine. The people who have been arrested will never know thatwhy the police or the DEA pulled them over. They'll think it's just luck. And that's important because if those people try to go to trial, there are pieces of information about how that evidence was obtained and what it shows and what other pieces of it showmight affect their trial.
AMY GOODMAN: On Monday, I spoke with Guardian columnist Glenn Greenwald just after your story broke about how the DEA is using material gathered in part by the NSA in its surveillance of Americans. Glenn Greenwald has, of course, broken several major stories about the NSA's domestic activity. This was his response.

GLENN GREENWALD: So this should be a huge scandal for the following reason. The essence of the Constitution is that the government cannot obtain evidence or information about you unless it has probable cause to believe that you've engaged in a crime and then goes to a court and gets a warrant. And only then is that evidence usable in a prosecution against you. What this secret agency is doing, according to Reuters, it is circumventing that process by gathering all kinds of information without any court supervision, without any oversight at all, using surveillance technologies and other forms of domestic spying. And then, when it gets this information that it believes it can be used in a criminal prosecution, it knows that that information can't be used in a criminal prosecution because it's been acquired outside of the legal and constitutional process, so they cover up how they really got it, and they pretendthey make it seem as though they really got it through legal and normal means, by then going back and retracing the investigation, once they already have it, and re-acquiring it so that it looks to defense counsel and even to judges and prosecutors like it really was done in the constitutionally permissible way. So they're prosecuting people and putting people in prison for using evidence that they've acquired illegally, which they're then covering up and lying about and deceiving courts into believing was actually acquired constitutionally. It's a full-frontal assault on the Fourth, Fifth and Sixth Amendments and on the integrity of the judicial process, because they're deceiving everyone involved in criminal prosecutions about how this information has been obtained.

AMY GOODMAN: John Shiffman, if you could elaborate on that and also talk about the differences between what the DEA is doing and what Glenn Greenwald exposed around the NSA?
JOHN SHIFFMAN: Sure. These are two veryI think they're different topics, for one main reason, which is that the NSA revelations by Mr. Greenwald and Mr. Snowden are related to terrorismor at least that's what we're told by the government. And the DEA, what the DEA is doing is onlyvery rarely do they get involved in terrorism. I mean, they do some narcoterrorism, but inside the United States we're talking about ordinary crime. We're talking about drug dealing, organized crime, money laundering. We're not talking about national security crimes.
The one thing I would say is that the defense analysts I've spoken with, meaning defense attorney analysts, they emphasize less the probable cause aspect of it than they findthey don't find that as troubling. What they find really troubling is the pretrial discovery aspects of this and a prosecutor's, you know, obligation to turn over any exculpatory evidence. What they really have a problem with is that this program systematically excludes or appears to systematically exclude all evidence obtained, you know, that's hidden from view, so the defense doesn't know to request it. They find that a lot more troubling than the probable cause aspects of it. The Supreme Court has given a pretty wide pro-police interpretation of when probable cause can be obtained, and there are a variety of exceptions. But it's really the pretrial discovery part of it that seems to trouble a lot of the former judges and defense attorneys and prosecutors.
AMY GOODMAN: One of the two slides Reuters obtained that were used to train agents with the Drug Enforcement Agency instructs them in the use of parallel construction. According to the slide, this is, quote, "the use of normal investigative techniques to recreate the information provided by the [Special Operations Division]," such as subpoenaed domestic telephone calls. A second slide instructs agents that such evidence, quote, "cannot be revealed or discussed." The slide is titled "Special Operations Division Rules." Describe what you uncovered about those rules and this concept of parallel construction, which until now had not been publicly discussed in writing.
JOHN SHIFFMAN: Well, what really surprised me was talking to agents, current and former agents, who said, "Sure, we do that." Theyhalf of them said, "Yeah, you know, I could see how people might have a problem with that." The other half said, "You know, look, this is a hard job that we do, and we're going after criminals and drug dealers." The people that got the most offended, I think, were the lawyers, the prosecutors and theyou know, and the judges and the former judges. One current prosecutor told me that he had a case wherein Florida, where a DEA agent came to him with a case and said that it began with an informant. So they were proceeding with the case, and the prosecutor asked the DEA agent more information. He said, you know, "I need to know more about your informant." Turns out, ultimately, that he found out that there was no informant. It was an NSA wiretap. And whatoverseas. And that really upset the prosecutor, because he said that it really offended his sense of fair play and honesty. And he said, "It's just a bad way of starting an investigation, if you're going to start with a lie."
AMY GOODMAN: I wanted to bring Ethan Nadelmann into this discussion, executive director of the Drug Policy Alliance. Ethan, why isare the revelations by Reuters, John Shiffman's investigation, so significant for your work?
ETHAN NADELMANN: Well, I think what it plays into, Amy, is that there's been this remarkable lack of oversight of DEA by Congress, by other federal oversight agencies, for decades now. I mean, this year marks the 40th anniversary of the DEA, which Nixon created as a merger of police agencies, of drug enforcement agencies, back during theone of the earlier drug wars. And what you see is an organization with a budget of over $2 billion. You see an organization getting involved in all sorts of shenanigans, hiring informants who land up to be tied up with murderers, you know, locking up some poor drugyou know, I don't think even drug dealer, druglow-level offender, and forgetting about him in a prison cell in this case of Daniel Chong, who was left in a prison cell for five days and forgotten. But beyond that, you have the agency serving as a propaganda agency, with nowith none of its statements being compared or held to any sort of scientific standards. You have an administrator who testifies before Congress and is almost a laughing stock when it comes to talking about drugs. So I think that this report by Reuters and by John ShiffmanI hope it's a sort of wake-up call for people in Congress to say, "Now is the time, finally, after really 40 years, to say this agency really needs a close examination."
AMY GOODMAN: Ethan, the Drug Enforcement Administration has agreed to pay $4.1 million in a settlement to a San Diego college student who nearly lost his life after being left handcuffed in his cell for more than four days without food or water. He ultimately drank his urine as he lay there, yelling out to agents right outside. His name was Daniel Chong. He was arrested for a 420 celebration of marijuana culture. He was never charged with any crime, and ultimately he was released.
ETHAN NADELMANN: You know, I thinkI mean, that's the case I was mentioning before. I mean, part ofyou know, one can say, "Oh, this is just an accident, and accidents happen." But, of course, accidents like that should never happen when you're talking about a police agency, much less a federal police agency, being allowed to just sort of forget about somebody. And in the end, what happens? The taxpayers bail out the DEA for almost killing somebody for no cause whatsoever. So, you know, each year the DEA goes through its own little, you know, appropriations hearings in Congress. Each year it gets approved. And each year they just sort of get a ride. I think these things are piling up in a way that can no longer be sustainedshould no longer be sustained.
AMY GOODMAN: So what has been, John Shiffman, the response to your investigation by the DEA, by the NSA, by the FBI and others?
JOHN SHIFFMAN: Well, they say it's perfectly legal, what they do. And they say thatone DEA official told us that, you know, "This is a bedrock principle, parallel construction. We use it every day." They're pretty unabashed about it and said thatyou know, that they've been doing this since the late '90s, and there's really nothing wrong with it. Yesterday the Justice Department said they are going to review it. But DEA has said, you know, there's no problem with this.
AMY GOODMAN: How many people does this impact?
JOHN SHIFFMAN: Well, it would impactI would think it would impact everyone, because, you know, it'swe're talking about a principle of law here. Not to get too legal, but, I mean, if you're arrested, one of the fundamental rights that you have is to see the evidence against you. You know, when I was at the DEA and doing the interview, they cited the Ted Stevens case, which involved prosecutorial misconduct, which hadin which the senator's charges were thrown out, because evidence was concealed. They said that after that there had been a review of all of the discovery procedures throughout the Justice Department, including at Special Operations Division. But they said thatand so I asked, I said, "Great, can I see a copy of the review?" And they said, "No."
AMY GOODMAN: So, Ethan Nadelmann, it's all legal.
ETHAN NADELMANN: Well, you know, that's what happens when any agency gets to just do what it wants to do for years and years and years without anybody looking over its shoulder. You know, I mean, Amy, this agency has also done things in the areas of medical marijuana, scientific research, the scheduling process of drugs, whereby they will go through an entirely legal process, through their own administrative law process hearings. It will have an internal judge, an administrative law judge, come down with recommendations that are scientifically based, that are credible, and then they will have the politically appointed head of this agency overrule those recommendations for no purpose whatsoever.
Once again, Congress is not asking any questions. It's their job to look at theI mean, obviously, it's the Obama administration's job, as well, and Eric Holder's job, as well, but it's ultimately Congress, as well, that has to care about these things. And I'm hoping that it's not just Democrats in the Senate, but also Republicans in the House, who will say, "This agency has gone too far." Republicans have never been great friends of overextensions of federal police power, and I hope they can find some common cause with Democrats, saying, "Wait a second. Let's call the DEA in here. Let's look at whatyou know, what John Shiffman has found with his investigative report. Let's look at all these other patterns of abuse and misbehavior."
AMY GOODMAN: We want to thank you both for being with us, John Shiffman, for your reporting at Reuters, and Ethan Nadelmann. Thanks so much for joining us. We'll link to the story at democracynow.org.
JOHN SHIFFMAN: Thanks.

[Magda Hassan]

Exclusive: IRS manual detailed DEA's use of hidden intel evidence

By John Shiffman and David Ingram
WASHINGTON | Wed Aug 7, 2013 6:23pm EDT

(Reuters) - Details of a U.S. Drug Enforcement Administration program that feeds tips to federal agents and then instructs them to alter the investigative trail were published in a manual used by agents of the Internal Revenue Service for two years.
The practice of recreating the investigative trail, highly criticized by former prosecutors and defense lawyers after Reuters reported it this week, is now under review by the Justice Department. Two high-profile Republicans have also raised questions about the procedure.
A 350-word entry in the Internal Revenue Manual instructed agents of the U.S. tax agency to omit any reference to tips supplied by the DEA's Special Operations Division, especially from affidavits, court proceedings or investigative files. The entry was published and posted online in 2005 and 2006, and was removed in early 2007. The IRS is among two dozen arms of the government working with the Special Operations Division, including the Federal Bureau of Investigation, the National Security Agency and the Central Intelligence Agency.
An IRS spokesman had no comment on the entry or on why it was removed from the manual. Reuters recovered the previous editions from the archives of the Westlaw legal database, which is owned by Thomson Reuters Corp, the parent of this news agency.
As Reuters reported Monday, the Special Operations Division of the DEA funnels information from overseas NSA intercepts, domestic wiretaps, informants and a large DEA database of telephone records to authorities nationwide to help them launch criminal investigations of Americans. The DEA phone database is distinct from a NSA database disclosed by former NSA contractor Edward Snowden.
Monday's Reuters report cited internal government documents that show that law enforcement agents have been trained to conceal how such investigations truly begin - to "recreate" the investigative trail to effectively cover up the original source of the information.
DEA officials said the practice is legal and has been in near-daily use since the 1990s. They have said that its purpose is to protect sources and methods, not to withhold evidence.
NEW DETAIL
Defense attorneys and some former judges and prosecutors say that systematically hiding potential evidence from defendants violates the U.S. Constitution. According to documents and interviews, agents use a procedure they call "parallel construction" to recreate the investigative trail, stating in affidavits or in court, for example, that an investigation began with a traffic infraction rather than an SOD tip.
The IRS document offers further detail on the parallel construction program.
"Special Operations Division has the ability to collect, collate, analyze, evaluate, and disseminate information and intelligence derived from worldwide multi-agency sources, including classified projects," the IRS document says. "SOD converts extremely sensitive information into usable leads and tips which are then passed to the field offices for real-time enforcement activity against major international drug trafficking organizations."
The 2005 IRS document focuses on SOD tips that are classified and notes that the Justice Department "closely guards the information provided by SOD with strict oversight." While the IRS document says that SOD information may only be used for drug investigations, DEA officials said the SOD role has recently expanded to organized crime and money laundering.
According to the document, IRS agents are directed to use the tips to find new, "independent" evidence: "Usable information regarding these leads must be developed from such independent sources as investigative files, subscriber and toll requests, physical surveillance, wire intercepts, and confidential source information. Information obtained from SOD in response to a search or query request cannot be used directly in any investigation (i.e. cannot be used in affidavits, court proceedings or maintained in investigative files)."
The IRS document makes no reference to SOD's sources of information, which include a large DEA telephone and Internet database.
CONCERN IN CONGRESS
House Intelligence Committee Chairman Mike Rogers, R-Michigan, expressed concern with the concept of parallel construction as a method to hide the origin of an investigation. His comments came on the Mike Huckabee Show radio program.
"If they're recreating a trail, that's wrong and we're going to have to do something about it," said Rogers, a former FBI agent. "We're working with the DEA and intelligence organizations to try to find out exactly what that story is."
Spokespeople for the DEA and the Department of Justice declined to comment.
Sen. Rand Paul, R-Kentucky, a member of the Homeland Security and Government Affairs Committee, said he was troubled that DEA agents have been "trying to cover up a program that investigates Americans."
"National security is one of government's most important functions. So is protecting individual liberty," Paul said. "If the Constitution still has any sway, a government that is constantly overreaching on security while completely neglecting liberty is in grave violation of our founding doctrine."
Officials have stressed that the NSA and DEA telephone databases are distinct. The NSA database, disclosed by Snowden, includes data about every telephone call placed inside the United States. An NSA official said that database is not used for domestic criminal law enforcement.
The DEA database, called DICE, consists largely of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. DICE includes about 1 billion records, and they are kept for about a year and then purged, DEA officials said.
(Research by Hilary Shroyer of West, a Thomson Reuters business. Additional reporting by David Lawder. Edited by Michael Williams)
http://www.reuters.com/article/2013/08/0...AZ20130807

[Magda Hassan]

How DEA program differs from recent NSA revelations

By John Shiffman
WASHINGTON | Mon Aug 5, 2013 5:16am EDT

(Reuters) - Former spy-agency contractor Edward Snowden has caused a fierce debate over civil liberties and national-security needs by disclosing details of secret U.S. government surveillance programs.
Reuters has uncovered previously unreported details about a separate program, run by the U.S. Drug Enforcement Administration, that extends well beyond intelligence gathering. Its use, legal experts say, raises fundamental questions about whether the government is concealing information used to investigate and help build criminal cases against American citizens.
The DEA program is run by a secretive unit called the Special Operations Division, or SOD. Here is how NSA efforts exposed by Snowden differ from the activities of the SOD:
Purpose of the programs
NSA: To use electronic surveillance to help the Federal Bureau of Investigation catch terrorists, the U.S. military fight wars, and the Central Intelligence Agency collect intelligence about foreign governments.
SOD: To help the DEA and other law enforcement agents launch criminal investigations of drug dealers, money launderers and other common criminals, including Americans. The unit also handles global narco-terrorism cases.
Gathering of evidence
NSA: Much of what the agency does remains classified, but Snowden's recent disclosures show that NSA not only eavesdrops on foreign communications but has also created a database of virtually every phone call made inside the United States.
SOD: The SOD forwards tips gleaned from NSA intercepts, wiretaps by foreign governments, court-approved domestic wiretaps and a database called DICE to federal agents and local law enforcement officers. The DICE database is different from the NSA phone-records database. DICE consists of about 1 billion records, and is primarily a compilation of phone log data that is legally gathered by the DEA through subpoenas or search warrants.
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.
Oversight
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.
(Edited by Blake Morrison)
http://www.reuters.com/article/2013/08/0...AI20130805

[Magda Hassan]

DEA teaches agents to recreate evidence chains to hide methods


Trainers justify parallel construction on national security and PR grounds: "Americans don't like it"



by Shawn Musgrave on Feb. 3, 2014, 10:30 a.m.
FOI Requests:

• DEA policies on "parallel construction"
  

Drug Enforcement Administration training documents released to MuckRock user C.J. Ciaramella show how the agency constructs two chains of evidence to hide surveillance programs from defense teams, prosecutors, and a public wary of domestic intelligence practices.
In training materials, the department even encourages a willful ignorance by field agents to minimize the risk of making intelligence practices public.
The DEA practices mirror a common dilemma among domestic law enforcement agencies: Analysts have access to unprecedented streams of classified information that might prove useful to investigators, but entering classified evidence in court risks disclosing those sensitive surveillance methods to the world, which could either end up halting the program due to public outcry or undermining their usefulness through greater awareness.
An undated slide deck released by the DEA to fleshes out the issue more graphically: When military and intelligence agencies "find Bin Laden's satellite phone and then pin point [sic] his location, they don't have to go to a court to get permission to put a missile up his nose." Law enforcement agencies, on the other hand, "must be able to take our information to court and prove to a jury that our bad guy did the bad things we say he did."

The trainer's notes continue, "In the old days, classified material was poison. In some ways, it still is… because if treated incorrectly, it can screw up your investigation."
A tactic known as "parallel construction" allows law enforcement to capitalize on intelligence information while obscuring sensitive sources and surveillance methods from the prosecution, defense and jury alike. DEA training documents suggest this method of reconstructing evidence chains is widely taught and deployed.
Last August, Reuters first reported on the practice of parallel construction by the DEA's Special Operations Division (SOD), a secretive unit that includes representatives from the FBI, CIA and NSA. Slides obtained by Reuters defined the method as "the use of normal investigative techniques to recreate the information provided by SOD." But documents released to Ciaramella indicate that DEA trainers routinely teach the finer points of parallel construction to field agents and analysts across the country, not just within SOD.
The bulk of the release comprises eight versions of a training module, "Handling Sensitive Information." Per lesson cover sheets, the module was created in 2007 for inclusion in entry-level analyst training programs, as well as for workshops at DEA field offices. The most recent dated revision in the release is from May 2012:

Documents here

The module puts the issue of using sensitive intelligence in law enforcement a bit more delicately. Per the 2012 lesson plan, the main problem with combining intelligence collection with law enforcement investigations "is the high potential for disclosure of these sensitive sources of information in our open, public trial system."

In addition to potential national security risks of exposing classified information and constitutional quandaries, an earlier version of the module highlights another issue with introducing sensitive or clandestine evidence into domestic trials: "Americans don't like it."

The instructor's notes from the same revision clarify the public pushback rationale.

Given the "fish bowl" nature of law enforcement work, DEA Academy graduates are guided to only use techniques "which are acceptable to our citizens."
Controversy notwithstanding, parallel construction apparently makes the DEA's list of such palatable techniques. The modules make clear that the idea is to shape evidence chains so that neither the prosecution nor the defense are to be made aware of classified information, if it can be helped.

When the court is made aware of classified evidence, a wholly separateif unfortunately namedsquad of prosecutors called the Taint Review Team will consult with the judge to determine which evidence must be turned over to the defense.


As described in the released portions of the module, parallel construction simply entails splitting the prosecutorial labor, with a Taint Review Team tackling pre-trial review so the trial prosecutor encounters as little classified evidence as possible.
But the released training modules provide no guidance on key issues noted in documents obtained by Reuters last August. In particular, the SOD slides barred agents from disclosing classified sources on affidavits or in courtroom testimony. Under this strain of parallel construction, the court would never know the classified origins of an investigation.
"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," as one former federal agent described the process to Reuters.
While there are no direct references to protocols of this kind, three additional slide decks released to Ciaramella cover traffic stops and drug dog sniffs extensively. These presentations are heavily redacted, but released portions address the advantages of pairing "tip information" and "vertical information transfers" with routine traffic stops as a pretext for making an arrest.


This same presentation offers guidance to officers wondering whether they should lie under oath rather than reveal that information came from a classified source.


DEA trainers advise officers in this position to let the prosecutor know "so that he or she can proactively address any issues" with the evidence in question, regardless of "where the information came from."
The unprecedented window these training documents give into the parallel construction method still leaves many questions unanswered, especially when it comes to logistics and legal justifications. What could not be clearer, though, is the DEA's stance that law enforcement must vigilantly protect intelligence resources by all possible means.

https://www.muckrock.com/news/archives/2...on-guides/

[Peter Lemkin]

It is so reassuring to have confirmation that all branches and divisions of the USG are acting legally and not going after persons using illegally obtained information.... How does this differ from the, for example, Stasi or Gestapo? It reminds me of when I was in university we were very careful to not discuss smoking grass on the phone for fear all phones [I'm talking late 1960s now] were listened in on, and the information would be used against those of us who were politically active more than those of us who were active users of grass or other recreational substances. Nothing has changed but the technology.:: Mind what you say on the phone or in emails....sad to say.

[Lauren Johnson]

It is so reassuring to have confirmation that all branches and divisions of the USG are acting legally and not going after persons using illegally obtained information.... How does this differ from the, for example, Stasi or Gestapo? It reminds me of when I was in university we were very careful to not discuss smoking grass on the phone for fear all phones [I'm talking late 1960s now] were listened in on, and the information would be used against those of us who were politically active more than those of us who were active users of grass or other recreational substances. Nothing has changed but the technology.:: Mind what you say on the phone or in emails....sad to say.

Peter, I spent a couple of hours in the basement of the Stasi building in Leipzig, Germany 13 months ago. It is now a museum and a place where people can comb through old Stasi files. It is also the place where the citizens of Leipzig would hold the candlelight marches for peace. They would stop in front of this old Stalinist building and sing. One night, they just walked in and the Stasi functionaries not having received orders to shoot to kill. Apparently, when the call was made to start shooting, no one picked up the phone, and the regime, in Leipzig fell.

Anyway, the place was creepy and nothing but a place where hundreds of people kept records on other people. The NSA is certainly our Stasi.

The old Stasi location: the Runde Ecke

[Magda Hassan]

https://deeppoliticsforum.com/forums/showthread.php?11895-NSA-vs-the-Staasi

[Dawn Meredith]

Erick told me yesterday that one of the NSA documents recently revealed that the NSA does not believe attorney client privilege attaches until an indictment. Therefore phone calls, letters, personal interviews may be observed. If true this is so blatantly Un Constitutional that it defies logic. Our rules require that we visit our clients immediately, first via mail and then as soon as possible in jail.
It can take up to 90 days for an indictment to issue.
So much for the rule of law. ::