How to lie about how the case got started E-mail
Written by Mark Nichols   

Here’s the problem with the NSA spying scandal- it’s not at all limited to the NSA. According to Reuters, a secretive U.S. Drug Enforcement Administration unit is handing out  information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to law enforcement officials across the nation to help them launch criminal investigations of Americans.

For a decade, critics of the federal government’s so-called war on terror have warned that the mechanisms that should be used to protect against terrorism would eventually be turned on Americans themselves.

According to the Reuters article, these cases rarely involve national security issues. That’s a problem because no one signed on to let the intelligence community get into traditional public safety.

John Q Citizen would not be pleased to find out that the government’s case against him is based not the result of good police work but rather a lucrative and unconstitutional arrangement between the intelligence community, federal agencies and other law enforcement entities.

To mitigate any outrage about this, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations actually start. The directions say that police should not only conceal how an investigation started from defense lawyers but from prosecutors and judges if need be.

The undated documents show that federal agents are trained to "recreate" the investigative trail in such a way as to hide where the information originated.

This is obviously a practice that violates a defendant's Constitutional right to a fair trial.

If a defendant doesn’t know how an investigation began, they can’t ask to review potential sources of exculpatory evidence that could show entrapment, error or biased witnesses.

For seasoned observers this is just more of the same- a fusion of the drug and terror wars with the traditional public safety mission- largely for the profits of the companies and agencies that buy and sell the personal information of Americans.

But for some that still cling to the quaint notion that we’re a nation of laws not men this is all a little scary- especially when you consider the fact that the intelligence community seems to be getting into crime fighting while crime is at a 40-year low.

"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 is far more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records.

"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 unit of the DEA that distributes the information is called the Special Operations Division, or SOD.

Like everything else “homeland security” it’s a sprawling mess.

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.

Much of the SOD's work is “classified.” Officials have asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked "Law Enforcement Sensitive," a government categorization.

According to the documents obtained by Reuters, law enforcement officials are told that rule number one is to keep your mouth shut.

"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, naturally declined to comment.

Others weren’t so reluctant.

"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.

"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."

"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?"

The answer is that we just don’t know yet.

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