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When lying to defense attorneys is OK

August 5, 2013, at 8:03 PM

For a story Reuters wrote about the Drug Enforcement Administration's large-scale sharing of NSA-originated phone intercepts and tips with other law enforcement agencies, the news agency accepted the DEA's request not to reveal the location of the organization within the DEA responsible for the wiretapping. Reuters also several times referenced the group's secrecy. Most of the agency's activities are "classified," it said.

Well. The cases are, yes.

But the Special Operations Division itself is a well-known entity that holds press conferences.

The DEA SOD focuses on bringing down large transnational narcotics rings, some of whom may have a connection to terrorist groups. And, apparently, SOD wiretaps many a phone line to bring them down. These taps aren't warrantless, but they can be broader in scope than you might expect; a judge can order that any phone call coming out of a building known to be owned by a drug trafficker and used primarily for narcotics trafficking be recorded, even if it belongs to a cleaning person who is unaware of what goes on upstairs. Sometimes, the DEA gets its original tips from the NSA, which can share information it obtains during the course of its FISA-order analyzing.

Unsurprisingly, the DEA is anxious about sharing the fact that it gets NSA tips.

Surprisingly, case agents have lied to prosecutors about the source of tips, which means that there might be some cases where people were convicted of major drug crimes based on fruit from a poisoned tree. It is one thing for the prosecution to omit the identify of the agency that gave a particular tip; it is quite another if the prosecutors unknowingly lie about the origin of the tip because the DEA refused to tell them the truth. Unless the tipped information could be introduced as evidence from another source (called a parallel construction), the Justice Department might be hesitant to give defense attorneys the chance to read NSA intercepts, even with special procedures in place.

Even if parallel construction is used to build cases, it is hard to see why the government's omission of the source of originating information isn't a problem. It seems indeed like a "direct and tangible fraud" perpetrated on defendants, who are entitled to all evidence that could be used to exonerate them. The counter-argument to this seems to be that, well, everyone has been doing this for so long, and it's not really a problem. It might not be a problem because judges haven't made it a problem, and because no one would know about it in the first place.

As regards the SOD itself: To call something secret when it is not is to fetishize secrecy. It is to endow the organization with more mystery and more power than it actually has. If the Justice Department readily acknowledges the location of the SOD, and does so on government websites accessible to the public, websites that come up in Google searches for "DEA SOD and location," there is no reason not to give the SOD a public home. (It's in Chantilly, Va., near the National Reconnaissance Office and Dulles Airport.)

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