Due Process Up in Smoke: The DEA’s “Special Operations Division” is watching you, too.

dea-raidA seemingly endless string of breaking news regarding US surveillance (spying) policies continues to increase concern among US citizens. Despite assurances that National Security Agency (NSA) activities are meant to protect us from terrorism, the latest breaking news from Reuters is that their surveillance is being used against US citizens. From 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 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.

…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 maintains a billion phone and Internet records. Although separate from the NSA, its data is derived from NSA information. Approximately 10,000 federal, state and local law enforcement agents have access.

Since the SOD’s work is considered classified, when it is used in criminal investigations against US citizens, agents are directed “to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony.” Agents are trained and instructed to use “normal investigative techniques to recreate the information provided by SOD,” according to Reuters.

As an example of the process, the SOD might pass a tip for an agent to be at a certain place at a certain time (perhaps take part in what appears to be a “random traffic stop”). The agent, who is provided the “tip,” will recreate (invent) an investigative trail that appears to go back to that seemingly random traffic stop, should the need arise in court. The defendants never know where the charges against them originate.

DEA officials claim this is done to protect their sources, and that this is a standard investigative technique, which goes back decades in their own as well as other law enforcement organizations. That may well be the case, but these standard investigative techniques, which they admit they use and have used for decades, are unconstitutional and ILLEGAL.

The ACLU responded to the news:

“The DEA is violating our fundamental right to a fair trial,” said Ezekiel Edwards, director of the American Civil Liberties Union’s Criminal Law Reform Project. “When someone is accused of a crime, the Constitution guarantees the right to examine the government’s evidence, including its sources, and confront the witnesses against them. Our due process rights are at risk when our federal government hides and distorts the sources of evidence used as the basis for arrests and prosecutions.”

“When law enforcement agents and prosecutors conceal the role of intelligence surveillance in criminal investigations, they violate the constitutional rights of the accused and insulate controversial intelligence programs from judicial review,” said Jameel Jaffer, ACLU deputy legal director.

In addition to the SOD’s questionable investigative procedures, there are laws regarding NSA surveillance of US citizens. Reuters made notes.

NSA: Collection of domestic data by the NSA and FBI for espionage and terrorism cases is regulated by the Foreign Intelligence Surveillance Act (FISA). 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 recent court filing, prosecutors said they will notify defendants whenever the NSA phone-records database is used during an investigation.)

SOD: Federal drug agents are trained to “recreate” the investigative trail to conceal 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.

Although the DEA claims that these techniques are only used against “common criminals,” from my own recent work I am aware of the DEA’s aggressive persecution of patients using medical marijuana, even in states where it is legal, and even in cases when its use is a matter of life and death. I am also aware that by the time the DEA finishes building their cases, even seriously ill individuals look like “common criminals,” and very frequently like drug lord kingpins.

Furthermore, despite numerous statements from the Obama Administration that the federal government would not interfere in changes in state medical marijuana laws, DEA raids have escalated in states where the use of medical marijuana has been legalized.

It is well known that the DEA’s modus operandi is to not allow medical marijuana defendants to present their side of their case in court. Now, the Reuters report reveals that the DEA has been working the investigations backwards – and filling in their own blanks to build the cases.

How many times have you heard what you considered low life scum complaining that they didn’t do it, that it wasn’t that way; or that the prisons were full of folks who didn’t do it? A whole lot of folks take a plea because the years they face if they lose are a whole lot more than if they go ahead and plead guilty to a lesser charge. The way our drug laws and sentencing standards have evolved has left a whole lot of otherwise good people with some very tough choices. Sure puts these SOD and DEA shenanigans in a different light.

Since most drug-trafficking defendants plead guilty before trial, they never request to see the evidence against them. Therefore, the law enforcement agents don’t worry a whole lot about the SOD’s involvement being exposed in court. Cases that go to trial are generally dropped if there is a risk of exposing SOD involvement. In cases where prosecutors have asked questions or requested more information, the SOD has blatantly lied to them as to the source of the investigation and where it began. Since the SOD allegedly does not keep records of the tips they supply, we have no way of knowing how many people have been falsely imprisoned, and/or had their lives ruined by these practices.

Our law is pretty clear on such. In fact, in a recent Illinois case regarding just that, whether surveillance supposedly obtained for use against foreign terrorists could be used against US citizens in criminal cases: the ruling was that if the evidence collected in such a manner was to be used in a criminal case, it must be revealed.

Ethan Nadelmann of the Drug Policy Alliance responded to the Reuters report, saying, “The DEA increasingly qualifies as a rogue agency – one that Congress needs to immediately investigate. This latest scandal may well be just the tip of the iceberg.”

The Drug Policy Alliance provided troubling highlights of recent DEA activities:

  • The DEA recently lost a $4.1 million lawsuit against a University of California student. They locked him in a holding cell and forgot about him, for five days.
  • There are questions and a Congressional call for investigations regarding a DEA-assisted drug war operation and massacre in Honduras.
  • Misconduct in political appointments.
  • Interference in state efforts to provide medical marijuana treatments to cancer, HIV/AIDS, MS, and other patients.
  • Scandals (such as the “House of Death” scandal in which a DEA informant helped murder at least a dozen people in Juarez, Mexico).
  • The DEA has repeatedly ignored science and over-ruled the DEA’s own administrative law judges to advance their “ideological agenda.”

Our citizens and our people are paying dearly for the actions of the SOD and the DEA. The tip of an iceberg is right, it is indeed time for Congress to order an investigation. The people who are charged with enforcing the laws of this country must not be allowed to put themselves above them.

Regina Garson

Raised in the hill country of central Alabama, Regina Garson has degrees in Behavioral Science, Communications, and English. A long time writer, editor and activist, her career has involved both the social and the hard sciences. She has devoted her efforts to a number of causes including the War on Drugs, equality issues: race/diversity/women, labor and workplace issues, NASA, STEM education, and space development. She is founder and publisher of MagicStream.org, which is among the earliest self-help and wellness sites on the Internet. She also publishes a blog, where you can read more of her writing: Regina Garson's Blog. Follow her on Twitter @ReginaGarson, like her on Facebook, and read more of her articles in the archives.


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