Tuesday, August 6, 2013

Reuters: DEA uses NSA data in nonterrorist arrests, then tells judges, prosecuting and defense attorneys that busts came from routine traffic stops

This is why anyone who thinks that covert, massive surveillance of terrorists won't affect them is hopelessly naive. If the NSA passes nonterrorist surveillance to the DEA, it could just as easily be passing surveillance data about illegal file sharing or anything else. Evidently, the DEA has been doing this at least since 1994. From Reuters via Forbes contributor Rick Ungmar:
     DEA agents are specifically instructed never to reveal nor discuss the existence and utilization of SOD provided data and to further “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.’”
     ...In law enforcement parlance, it is called “parallel construction.”     Accordingly to a former federal agent, the SOD ‘tip’ system works as follows:
     “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.”
     When the SOD tip leads to an arrest, the agents then pretend that the drug bust was the surprise result of pulling the vehicle over as a routine traffic stop.
     So secretive is the program, SOD requires that agents lie to the judges, prosecuting attorneys and defense attorneys involved in a trial of a defendant busted as a result of SOD surveillance—a complete and clear violation of every American’s right to due process, even when that American is a low-life drug dealer.
     Every criminal defendant is entitled to the legitimate data and facts surrounding their arrest so that their counsel can examine the propriety of the arrest and attack procedures that may be improper and illegal under the law in defense of their client. When sensitive, classified data is involved in such a case (data possibly collected in surveillance of a foreign national that reveals incriminating evidence involving an American), it is the prerogative of the judge to decide what should and should not be admitted into evidence.
     As for the prosecutors, not everyone is enamored with the idea of such deceit, even if it produces convictions. Reports Reuters:
     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.
...The disclosure of the SOD program is upsetting a great many legal and constitutional experts throughout the nation. Speaking to Reuters, Harvard Law Professor, Nancy Gertner—who also spent seventeen years on the bench as a federal judge—said,
     “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.”
     Other constitutional and legal experts point out that the program is more disturbing than the recent NSA disclosures involving the collection of phone metadata as the NSA effort is geared towards catching terrorists while the DEA program is targeting common criminals who, as Americans, are entitled to their constitutional protections no matter what their alleged crimes.

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