The NSA may not be the only federal agency snooping through your phone records. In an exclusive this morning, Reuters reports that the DEA has also conducted its own snooping — and has investigators covering it up by falsifying evidentiary trails to keep prosecutions from getting derailed:
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.
Only some experts say that falsifying evidence violates the right to a fair trial? Ahem. That’s the entire point of the civil rights protected by the Constitution when it comes to criminal prosecution. If the DEA is violating the Fourth Amendment on snooping, it’s not much of a stretch to imagine that the Fifth and Sixth Amendments don’t get a lot of respect at the DEA.
On the other hand, plenty of people are justifying the NSA’s trawling of data on the basis of national security, and the DEA methods don’t appear to differ in great degree from that — except in how the DEA has covered up its activities. Former federal judge Nancy Gertner makes that distinction for Reuters:
“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.”
But is this “entirely different” from national security? It depends on the definition of that subject. The program began as part of the war against Latin American drug cartels, according to the Reuters report. At one time, that was considered a national security issue, and in some cases might still be. That, however, is a very slippery slope; bank robberies could be considered a national security issue under some circumstances (as it perhaps might have been with the Weather Underground or SLA crimes, for instance). Where does the Department of Justice, which oversees the DEA, draw the “national security” line? That prompts this question from a former federal prosecutor:
“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?”
Indeed. It appears that the federal government has had trouble drawing that line anywhere.
Update: Moe Lane points out on Twitter that paralleling investigations to protect confidential sources has been standard practice for law enforcement for decades:
Lot of libertarians don't like it, but 'protect the snitch' has been standard cop policy for a while. Thanks to Obama, that now looks hinky.
— Moe Lane (@moelane) August 5, 2013
True. However, in this case, the “snitch” is the government itself, not an unaffiliated witness.
Update: Jeff Dunetz hits the nail on the head:
This collection and use of personal data is much worse than the NSA scandal revealed in June. In that case while the ends (national security) may not have justified the means, but in this latest revelation there is no justification for either. It is an simply an “illegal search” for a criminal case. The DEA must know their methodology is tainted, why else would they be training their agents to cover it up?