Earlier this month, Reuters revealed that a special division within the U.S. Drug Enforcement Administration (DEA) has been using intelligence intercepts, wiretaps, informants and a mass database of telephone records to secretly identify targets for drug enforcement actions.
In the wake of these revelations, a former prosecutor tells IPS he believes he and his colleagues may have been unwitting pawns in the federal government’s effort to deceive defendants and the court system, thereby violating citizens’ constitutional rights.
“None of us had any idea whatsoever there was a secret DEA programme that instructed DEA agents to conceal the source,” Patrick Nightingale, a former prosecutor for Allegheny County, Pennsylvania, and a member of Law Enforcement Against Prohibition, told IPS.
“My oath as an attorney and as a prosecutor was as an officer of the constitution, and not to win at all costs. This [programme] is a win at all costs mentality: whether it’s constitutional or not we’re going to use it and we can conceal it,” he said.
Called the Special Operations Division (SOD), it is comprised of some two dozen federal agencies, including the Federal Bureau of Investigation, Central Intelligence Agency, National Security Agency (NSA), Internal Revenue Service (IRS), and the Department of Homeland Security.
Everything about the SOD is secret, including the size of its budget and the location of its offices.
Reuters has also identified the IRS as a recipient of the information, pointing to a former IRS training manual that referenced the SOD programme.
As a routine practice, the SOD secretly provides the information to local authorities across the U.S., allowing them to start investigations against U.S. citizens under false pretenses, in a practice known as “parallel construction”.
For example, under parallel construction, local law enforcement will be instructed to find a reason to stop a particular vehicle – for example, through a routine traffic stop – and then once the drugs are found, the government will falsely state the drugs were found in the traffic stop.
The IRS training document details how government officials are instructed to conceal – from prosecutors, defence attorneys, and even the courts – the methods by which a suspected drug criminal is identified and then targeted for apprehension.
“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 2005 and 2006 IRS training manual says, according to Reuters.
“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 document states.
The Electronic Frontier Foundation (EFF), a group that defends free speech and privacy issues, calls it “intelligence laundering“.
Since the revelations on Aug. 5, the Justice Department has said it is reviewing the programme, according to reports. But such a review does not address the constitutional violations that appear to have already occurred.
“Our criminal justice system is based on the presumption of innocence and our constitution demands fair play in criminal proceedings. It demands that prosecutors reveal to the defence both the good and the bad,” Nightingale said.
“If the source of this information is so sensitive that a law enforcement agency is told to keep the information from its own team [including federal and local prosecutors] because it knows members of its team are required to divulge it to the other side [the defence], then it’s a problem,” he said.
Nightingale told IPS he had no awareness of the programme as a prosecutor, even though he worked on many cases where he sought court approval for a Title 3 wiretap based on certain evidence. Now he does not know – nor does he have any way of knowing – how many of those cases originated from a secret SOD tip.
“This is changing the rules of the game so they can conceal the source and use tainted information, depriving… defence attorneys and defendants from being able to have a fair trial as defined by the Constitution,” he said.
Hanni Fakhoury, a staff attorney with EFF, told IPS, “The NSA data is being gathered on purpose, and then directed to a different purpose.” He said the information being gathered by the NSA “should” be something that the FISA Court has been approving, although there is no way to know.
“Those orders have a broad scope. The orders aren’t public, there isn’t insight into what the orders look like, or how the court operates really,” Fakhoury said.
“The big concern is they’re not being forthright about the fact that they’re using the information directed toward a purpose not related to national security, and they’re not telling the court or the defendants the true source of that information.
“It’s yet more proof what is being said publicly [by the NSA] is not all entirely accurate,” he said. “It’s another reason why we have to very carefully scrutinise the government’s justification for these types of programmes.”
Fakhouri says the SOD programme is unconstitutional because of the Fifth and Sixth Amendments combined.
Full and fair disclosure is enshrined in the U.S. Constitution as part of the Sixth Amendment, which states, “In all criminal prosecutions, the accused shall enjoy the right… to be informed of the nature and cause of the accusation.”
The Fifth Amendment provides, “No person shall be… deprived of life, liberty, or property, without due process of law.”
The revelations also raise the possibility that individuals who have been convicted over the last 20 years on drug charges, or perhaps IRS-related charges, will challenge those convictions in court on the basis that secret evidence may have been used in the investigative process.
“I think we’re going to see a lot of those types of arguments. How successful those will be – will be a tough sell. I think it will be an interesting thing to watch,” Fakhoury said.
Inter Press Service