Bruce Dixon at Black Agenda Report had recently steered readers to newly procured FOIAed documents that he called ‘a smoking gun’ in the DEA manuals of ‘parallel reconstruction’ of phony chains of evidence that began with NSA and likely other security state acronym agencies funneled to law enforcement agencies.
You will likely remember that in August of last year Reuters had announced that it had seen Snowden files that showed the same thing, including the fact that the wiretaps, call data, any and all bulk collected information, were about spying on Americans, which blew out of the water the lies that we weren’t being spied upon.
The documents showed quite clearly that law enforcement was to go to great lengths to hide the provenance of the tips, clues, etc., as to how the ‘investigations’ had begun, from not only defense attorneys, but often prosecutors and judges, even though the cases rarely involved national security issues .
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.
Then come a few paragraphs concerning the unconstitutionality of phonying up cases, and some bits about the NSA being about stopping terrorism, but never mind. Then comes an explanation of the SOP, which program has been operational for some time, and is no secret, and is even noted in the DEA’s budget, according to emptywheel.
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.’
Well, yes, they seem to, and some of the defenders of the system tell us how, and why it’s fair and oh so necessary at the Reuters piece. Several of the quotes of shock are telling, but many don’t quite reflect adequate outrage, if you believe in our Constitutional rights, that is. Due process, for instance? How quaint: fair trial, the right to confront evidence, including potentially exculpatory evidence, maybe even witnesses?
‘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.’ Ha, ha.
But as I was poking around for anything new about this cool new law enforcement tool (sic) I found this cheery update from the Electronic Frontier folks:
‘UPDATE: Add the IRS to the list of federal agencies obtaining information from NSA surveillance. Reuters reports that the IRS got intelligence tips from DEA’s secret unit (SOD) and were also told to cover up the source of that information by coming up with their own independent leads to recreate the information obtained from SOD. So that makes two levels of deception: SOD hiding the fact it got intelligence from the NSA and the IRS hiding the fact it got information from SOD. Even worse, there’s a suggestion that the Justice Department (DOJ) “closely guards the information provided by SOD with strict oversight,” shedding doubt into the effectiveness of DOJ earlier announced efforts to investigate the program.
A startling new Reuters story shows one of the biggest dangers of the surveillance state: the unquenchable thirst for access to the NSA’s trove of information by other law enforcement agencies’.
So back to the title of the post, and the reason behind it. Muckrock.com (a new to me ‘open government’ website) in conjunction with the Sunlight Foundation have been requesting members to request interesting documents through the FOIA process. Member CJ Ciaramella requested the DEA manual, and received a somewhat redacted version of it. And in the ‘a picture (screenshot?) is worth a whole lotta words, I thought readers (viewers?) might like to see some of them. The 276-page pdf is at the link, and do be prepared for the fact that this document is far less faux-sexy than the Prism and Angry Bird and whatnot slides, but still demonstrate the mindset involved in all of it quite amply. If I’d discovered how, I might have embedded it. But I have embedded some of the images and explanations from Muckrock (they rawk). While you look, remember that since its inception, the SOD’s mandate has expanded to include narco-terrorism, organized crime and gangs, as well as Bruce Dixon’s reminder that black and brown people are jailed so disproportionately for ‘drug crimes’ in this country, ever so patriotically filling up beds for the Industrial Prison Complex.
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.” Oh, the harsh constraints on the good guys!
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 (Pdf 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” i.e.’ the public just might pushback a little bit’ . Well, and maybe the ‘constitutionality’, of course.
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 separate—if unfortunately named—squad of prosecutors called the ’Taint Review Team’ will consult with the judge to determine which evidence must be turned over to the defense. And that’s a god thing: because Judges are always so rigorous defending The People.
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.
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.
As a bit of an added bonus, you might care to read about this nefarious program courtesy of the Military: ‘Bounties for Live Bodies for the War Machine’ (my title) at Common Dreams:
‘The latest scandal to hit the U.S. military – following hard on the sex, drugs, drinking and cheating ones – has implicated up to 1,200 Army recruiters, including about 200 officers, for pocketing up to $100 million in bogus bonuses for signing up young, broke, ill-informed and other unfortunate innocents to go fight their dirty war in Iraq and Afghanistan. Under the now-discontinued program, which was begun in the National Guard and expanded to the Army and Army Reserve, soldiers got cash payments of up to $7,500 – which once upon a time would have been called a bounty – for each new warm body recruited into the increasingly thinning, bloodied ranks, especially at the height of the Iraq War. At Senate hearings this week, Sen. Claire McCaskill, D-Mo, called the years-long abuses “discouraging and depressing,” even as she and many others said the system pretty much invited fraud and kickbacks. Defense Secretary Chuck Hagel is likewise “deeply troubled.” The newest scandal, his spokesman said, raises the possibility the military has a “systemic” ethics crisis. You think?
“He is generally concerned that there could be, at least at some level, a breakdown in ethical behavior and in the demonstration of moral courage.” – Hagel spokesman.
No comment here from myownself, of course. I know that it’s a beautiful world the PTB are creating for us…
[Updated]: Today is the day we fight back against mass surveillance.
Click here to join today’s effort by placing a call, sending an email, or signing a petition — it’ll just take a minute or two. Personally I prefer the bill Shahid Buttar recommends over the USA Freedom Act:
The Surveillance State Repeal Act, introduced in the House by former House intelligence Chairman (and Princeton physics professor) Rush Holt (D-NJ), would come the closest, by repealing the PATRIOT act and the FISA amendments act of 2008 entirely. Among the reform proposals that have been introduced, it may be the only one that reaches the sphere of what former Defense Secretary Donald Rumsfeld described as the “unknown unknowns” that continue to impede efforts to restore the rule of law, transparency, and accountability to the national security state.
cross-posted at Café-Babylon.net