The Drug Enforcement Agency has dived headfirst into the secret surveillance program, collecting information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to open criminal investigations, according to
reporting from Reuters. They are obtaining NSA intercepts, nabbing suspects based on them, and then recreating an entire investigative trail to hide the fact that the intelligence launched the criminal investigation.
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 existence of this unit isn't a secret and is not news to defense attorneys,
according to one of those attorneys, bmaz at emptywheel.net. This is legal, allowed by the Patriot Act. So the existence of the program isn't necessarily a bombshell, but it does highlight a major problem for civil liberties: The DEA is essentially laundering the evidence, creating an investigative trail that can't be traced.
That's a real problem, because it can absolutely hamstring the defense. It buries the evidence defense attorneys rely on, potentially violating pretrial discovery rules. It doesn't just hide that information from defense attorneys, but sometimes from prosecutors and judges, too. That makes this program at least on the edge of constitutionality, making a mockery of due process and fair trials.
There's more discussion of this story in bobdevo's diary.