One day after we learned via the New York Times that multiple government agencies have been trying to pry information from the National Security Agency for their own uses, Reuters reported today that the Drug Enforcement Administration has successfully been able to do just that.
With the help of the NSA and other government agencies, a secret team within the DEA has been using intelligence from wiretaps, informants, and a "massive database" of phone records as sources for tips to begin investigating American citizens. To keep the controversial program under wraps, DEA agents then hide those tips by finding other reasons to launch their investigations.
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. [Reuters]
Called the Special Operations Division, or SOD, the DEA's secret unit partners with two dozen agencies — including the FBI, CIA, and NSA — to share intelligence information. The program was created in 1994 to investigate foreign drug cartels, but it has since grown to include several hundred employees who now focus on domestic drug crimes as well.
The unit reportedly uses NSA information in a way that effectively covers its own tracks.
If DEA agents received a tip to be on the lookout for a certain car believed to be smuggling drugs, they reportedly would have police pull it over for a phony cause — say, speeding — to then search it. That way, they could act as if the traffic stop, not a tip based on legally dubious information, prompted the investigation.
Though the NSA is only supposed to spy on foreigners, it can in some circumstances retain Americans' communications that have been erroneously ensnared in the agency's intelligence-gathering net. Government documents obtained by the Guardian showed that the NSA was allowed to keep domestic communications only if they "contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity."