Former CIA and NSA employee source of intelligence leaks

[citizen k]

U.S. directs agents to cover up program used to investigate Americans
By John Shiffman and Kristina Cooke

WASHINGTON (Reuters) - A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

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.

"It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."

THE SPECIAL OPERATIONS DIVISION

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."

A spokesman with the Department of Justice, which oversees the DEA, declined to comment.

But two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily.

A former federal agent in the northeastern United States who received such tips from SOD described the process. "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," the agent said.

"PARALLEL CONSTRUCTION"

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

"It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.

Some defense lawyers and former prosecutors said that using "parallel construction" may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.

A QUESTION OF CONSTITUTIONALITY

"That's outrageous," said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. "It strikes me as indefensible."

Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin "would not only be alarming but pretty blatantly unconstitutional."

Lustberg and others said the government's use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant's identity or classified evidence, to determine whether the information is relevant to the defense.

"You can't game the system," said former federal prosecutor Henry E. Hockeimer Jr. "You can't create this subterfuge. These are drug crimes, not national security cases. If you don't draw the line here, where do you draw it?"

Some lawyers say there can be legitimate reasons for not revealing sources. Robert Spelke, a former prosecutor who spent seven years as a senior DEA lawyer, said some sources are classified. But he also said there are few reasons why unclassified evidence should be concealed at trial.

"It's a balancing act, and they've doing it this way for years," Spelke said. "Do I think it's a good way to do it? No, because now that I'm a defense lawyer, I see how difficult it is to challenge."

CONCEALING A TIP

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.

A senior DEA official said he was not aware of the case but said the agent should not have misled the prosecutor. How often such misdirection occurs is unknown, even to the government; the DEA official said the agency does not track what happens with tips after the SOD sends them to agents in the field.

The SOD's role providing information to agents isn't itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court.

The DEA has long publicly touted the SOD's role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don't accidentally try to arrest each other.

SOD'S BIG SUCCESSES

The unit also played a major role in a 2008 DEA sting in Thailand against Russian arms dealer Viktor Bout; he was sentenced in 2011 to 25 years in prison on charges of conspiring to sell weapons to the Colombian rebel group FARC. The SOD also recently coordinated Project Synergy, a crackdown against manufacturers, wholesalers and retailers of synthetic designer drugs that spanned 35 states and resulted in 227 arrests.

Since its inception, the SOD's mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit's annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.

Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE.

The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said.

About 10,000 federal, state and local law enforcement agents have access to the DICE database, records show. They can query it to try to link otherwise disparate clues. Recently, one of the DEA officials said, DICE linked a man who tried to smuggle $100,000 over the U.S. southwest border to a major drug case on the East Coast.

"We use it to connect the dots," the official said.

"AN AMAZING TOOL"

Wiretap tips forwarded by the SOD usually come from foreign governments, U.S. intelligence agencies or court-authorized domestic phone recordings. Because warrantless eavesdropping on Americans is illegal, tips from intelligence agencies are generally not forwarded to the SOD until a caller's citizenship can be verified, according to one senior law enforcement official and one former U.S. military intelligence analyst.

"They do a pretty good job of screening, but it can be a struggle to know for sure whether the person on a wiretap is American," the senior law enforcement official said.

Tips from domestic wiretaps typically occur when agents use information gleaned from a court-ordered wiretap in one case to start a second investigation.

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.

Current and former federal agents said SOD tips aren't always helpful - one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away.

"It was an amazing tool," said one recently retired federal agent. "Our big fear was that it wouldn't stay secret."

DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.







How DEA program differs from recent NSA revelations
By John Shiffman

WASHINGTON (Reuters) - Former spy-agency contractor Edward Snowden has caused a fierce debate over civil liberties and national-security needs by disclosing details of secret U.S. government surveillance programs.

Reuters has uncovered previously unreported details about a separate program, run by the U.S. Drug Enforcement Administration, that extends well beyond intelligence gathering. Its use, legal experts say, raises fundamental questions about whether the government is concealing information used to investigate and help build criminal cases against American citizens.

The DEA program is run by a secretive unit called the Special Operations Division, or SOD. Here is how NSA efforts exposed by Snowden differ from the activities of the SOD:

Purpose of the programs

NSA: To use electronic surveillance to help the Federal Bureau of Investigation catch terrorists, the U.S. military fight wars, and the Central Intelligence Agency collect intelligence about foreign governments.

SOD: To help the DEA and other law enforcement agents launch criminal investigations of drug dealers, money launderers and other common criminals, including Americans. The unit also handles global narco-terrorism cases.

Gathering of evidence

NSA: Much of what the agency does remains classified, but Snowden's recent disclosures show that NSA not only eavesdrops on foreign communications but has also created a database of virtually every phone call made inside the United States.

SOD: The SOD forwards tips gleaned from NSA intercepts, wiretaps by foreign governments, court-approved domestic wiretaps and a database called DICE to federal agents and local law enforcement officers. The DICE database is different from the NSA phone-records database. DICE consists of about 1 billion records, and is primarily a compilation of phone log data that is legally gathered by the DEA through subpoenas or search warrants.

Disclosure to the accused

NSA: Collection of domestic data by the NSA and FBI for espionage and terrorism cases is regulated by the Foreign Intelligence Surveillance Act. If prosecutors intend to use FISA or other classified evidence in court, they issue a public notice, and a judge determines whether the defense is entitled to review the evidence. In a court filing last week, prosecutors said they will now notify defendants whenever the NSA phone-records database is used during an investigation.

SOD: A document reviewed by Reuters shows that federal drug agents are trained to "recreate" the investigative trail to conceal the SOD's involvement. Defense attorneys, former prosecutors and judges say the practice prevents defendants from even knowing about evidence that might be exculpatory. They say it circumvents court procedures for weighing whether sensitive, classified or FISA evidence must be disclosed to a defendant.

Oversight

NSA: Congressional leaders and intelligence committee members are briefed on the NSA's classified programs. The Foreign Intelligence Surveillance Court reviews and approves warrants for domestic eavesdropping.

SOD: DEA officials who oversee the unit say the information sent to law enforcement authorities was obtained through subpoena, court order and other legal means. A DEA spokesman said members of Congress "have been briefed over the years about SOD programs and successes." This includes a 2011 letter to the Senate describing the DICE database. But the spokesman said he didn't know whether lawmakers have been briefed on how tips are being used in domestic criminal cases.

[grumbler]

"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.

I think she doth protesteth too much.  Keeping informants' identities hidden when their evidence is not actually being used in the case isn't uncommon in criminal cases.  Unless she was some kind of federal administrative judge who never encountered a criminal case nor ever talked to prosecutors or defense attorneys, I think she probably heard something like this "at all."

Ditto for almost any intelligence feed into a criminal investigation.  A foreign source might not be willing to come and testify in the US, but the information provided by that source could be used in internal US investigations without, I believe, violating any "Constitutional rights" (which consist of the right to vote and nothing more - the rest of the rights of US citizens are "Constitutionally protected" but not "Constitutional" per se).

[The Minsky Moment]

All true grumbler, but what is unusual here is that the information is also withheld from prosecutors, which prevents them from complying with their Brady obligations.

[garbon]

No, there is a reason I immigrated to the US and not Russia

Well, when it comes to blowing state secrets, every country is more or less like Russia.  Some will take your life directly, some will just ruin it, but your life will be essentially done for. 

[Viking]

Bacon of liberty.

FREE BACON!

Who has Bacon?!!?!?! Who hates humanity so much to deny us Bacon??

[grumbler]

All true grumbler, but what is unusual here is that the information is also withheld from prosecutors, which prevents them from complying with their Brady obligations.

Are intelligence officials required to provide classified information to prosecutors to ensure the prosecutors can meet their Brady obligations, when that information isn't used in the case?  If so, are there provisions for the protection of the intel sources?

[OttoVonBismarck]

Yeah, he's really not a traitor in the legal sense, just a law breaker.  And he's not a whistle blower by that particular definition, either.  He's just a self-absorbed Millennial hipster high school dropout with some PowerPoints about things that, if people were paying attention for the last 10 years, they'd know existed anyway.   And I doubt any "revelations" he delivers will result in some sort of new Church Commission.

His importance is magnified by the 24 hour news cycle, and himself.

I think a lot of people are desperate to find a 21st century Daniel Ellsberg (or even if not guys like him, plain ordinary good investigative journalists like Bernstein and Woodward), and are ready to announce anyone who does anything anti-government as sharing in the heritage of people that rooted out or took personal risk to expose government malfeasance. Snowden, Manning, Assange are all of a mold where it appears they acted mostly out of stupidity/mental defect (Manning), or narcissism (Snowden and Assange.) They also mostly exposed nothing, the biggest thing ever to come out of WikiLeaks was a helicopter video showing something that was probably not a criminal act, and a lot of diplomatic cables that mostly contained stuff everyone knew anyway (but we obviously didn't want to be caught saying) and intelligence information on Afghanistan that mostly just hurt operations there and didn't really expose any malfeasance. The Snowden stuff as you say, people should have had some inkling it was going on.

A whistleblower in any case I thought someone at a company or the government who takes a risk and exposes their employer for committing crimes, like financial fraud or things like torture or whatever in the case of the government. Snowden revealed classified but entirely legal processes, that were allowed (as interpreted by a court) by statutes passed by a recent Congress. That's not whistleblowing, that is disagreeing with the law and then breaking another set of laws to try and express your disagreement with said law. That is "something", maybe civil disobedience, but it's not whistleblowing.

[Razgovory]

I agree 100% with Otto.

[The Minsky Moment]

All true grumbler, but what is unusual here is that the information is also withheld from prosecutors, which prevents them from complying with their Brady obligations.

Are intelligence officials required to provide classified information to prosecutors to ensure the prosecutors can meet their Brady obligations, when that information isn't used in the case?  If so, are there provisions for the protection of the intel sources?

SOD as described covers a lot of information of which NSA intercepts are only one.  And probably a lot less than foreign government wiretaps obtained by normal means, although I guess we have no way of knowing the quantity. 

It is not exactly unknown for secret intelliegence information to become relevant to a case.  There are various ways this is handled, but often a judge reviews a description in camera, and may rule that the material is not subject to disclosure for security reasons.  Or he may rule that some limited material may be seen by selected lawyers who get security clearances for that purpose.  But none of that inquiry can happen if one arm of the government is lying to another arm of the government. 

[jimmy olsen]

The kind of whistleblower who doesn't want to be thrown deep into the military justice system, never to be heard from again?

You mean like the way Bradley Manning wasn't heard from again?

If "not being heard from" means a three month long trial covered daily by the press, an impressive trial team of 3 experienced defense counsel, and resulting in acquittal on the most serious charge against him, you'd be right.  Justice in America is often flawed but from all appearances, Bradley Manning has about as little to complain about as just about anyone I can think of.

It would be more accurate IMO to say that Snowden is the kind of whistleblower who knows he has broken the law and the trust placed in him but doesn't want to take the consequences.
I can certainly understand why a criminal would want to escape prosecution; I don't understand why such conduct should be excused or admired.

Manning was also tortured for months, something that Snowden may have wanted to avoid for some reason.

[Admiral Yi]

He was put in solitary Timmy.

Or are you referring to his food insecurity?

[The Minsky Moment]

I doubt that Snowden believed that he was at risk of being putting on suicide watch in an overseas military prison.

[Siege]

[Siege]

[CountDeMoney]

Looks like somebody's been eating fermented fruit again.