Trail of U.S. Criminal Investigations Altered to Cover up DEA Unit’s Role as Data Source

Wednesday, August 07, 2013
DEA Administrator Michele Leohnart

From a constitutional rights perspective, the latest revelation about the U.S. Drug Enforcement Administration (DEA) is even more troubling than what’s been reported on National Security Agency (NSA) activities, according to legal experts.


An investigation by Reuters found a secretive DEA unit known as the Special Operations Division (SOD) has been helping state and local law enforcement with drug busts by providing information collected from intelligence intercepts, wiretaps, informants and a “massive database of telephone records.”


That database, known as DICE, contains roughly a billion records and is accessed by about 10,000 law enforcement agents across the nation. SOD’s wiretap data usually comes from foreign governments, U.S. intelligence agencies or court-authorized domestic telephone surveillance.


But the disturbing part is the DEA requires police who receive the agency’s help to cover up the fact that they were given the tips—and not even tell defense lawyers, prosecutors and judges that their investigations began with the DEA.


Also, Reuters obtained DEA documents showing that federal agents are trained to “recreate” the investigative trail in order to conceal the agency’s involvement in the arrests.


This tactic keeps a defendant from knowing how an investigation began, which opens the door to problems like entrapment and biased witnesses.


“I have never heard of anything like this at all,” Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011, told Reuters.


Gertner and other legal experts said the DEA program seems more disturbing than recent disclosures about the NSA 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.”


Lawyers interviewed by Reuters described the operation as “alarming,” “outrageous,” “indefensible,” and “blatantly unconstitutional.” One former federal prosecutor called it “subterfuge,” adding, “If you don’t draw the line here, where do you draw it?”


When asked about SOD, two senior DEA officials defended the program, claiming the agency’s efforts to “recreate” investigations were both legal and performed almost daily. A former DEA agent, Finn Selander, compared the DEA’s work to money laundering –“you work it backwards to make it clean,” he told Reuters.


This cover-up element is currently being reviewed by the U.S. Department of Justice, which oversees the DEA.


Reuters’ investigation determined that SOD was created in 1994 for the purpose of combating Latin American drug cartels. Its original staff of several dozen employees has grown over the years to several hundred, and it now has the participation of two dozen partner agencies, including the NSA, CIA, FBI, Homeland Security, and IRS. Its work is classified and its exact location in Virginia is a closely held secret.

-Noel Brinkerhoff, Danny Biederman


To Learn More:

U.S. Directs Agents to Cover Up Program Used to Investigate Americans (by John Shiffman and Kristina Cooke, Reuters)

U.S. to Review DEA Unit that Hides Use of Intel in Crime Cases (by John Shiffman and David Ingram, Reuters)

DEA Rejection of Freedom of Information Requests Doubles under Obama (by Noel Brinkerhoff, AllGov)


JOHN 10 years ago
As a defense attorney I always focus on the legality of the initial police contact (car stop, etc) with my client. Here however, it appears as though federal law enforcement has created issues regarding the legality of their conduct and more importantly their credibility where, in my opinion, there were no issues. This is similar to the cover-up is worse than the crime type of situation. The feds did not have to recreate anything or infer that the investigation started with the car stop. The feds, or any law enforcement agency would have a problem if they simply stopped a vehicle based upon information received if they did not, or could not reveal the source of such information. However, if the information is independently corroborated by officers who are lawfully where they are allowed to be, the initial source of the information is irrelevant (unless they are law enforcement). If the source indicated a black car at 5 pm on route 25 with three male whites will pull into Home Depot and meet with two male blacks waiting in a chevy van at which time 5 oz. of cocaine will be sold and the police independently corroborated such information, the independent corroboration can be sufficient. Its the same analysis as if the police acted on an anonymous tip or 911 call. Under NY State law, the police can only corroborate tips of unknown origin with criminal conduct. In other words, the NY authorities could not move in simply because the same cars and individuals met in the home depot as the anonymous source said. The police in NY must corroborate with criminal conduct. The feds however, can corroborate based upon the totality of the circumstances whether criminal conduct is observed or not. But, in NY, the police can stop a vehicle for any of hundreds of different traffic infractions even if their true motivation is a criminal investigation prompted by a source. As long as the police truly observe a traffic infraction in NY, the stop is lawful. So I do not see any issue here provided law enforcement, federal or state, independently corroborate their sources information in a lawful manner. Had the feds followed this approach, I do not believe this would be such an issue. The counter argument I believe would be "the fruit of the poisonous tree" argument. In other words, if the initial information was obtained in violation of the constitution, then all evidence derived therefrom is tainted. Unless the source is acting at the direction of the police, as an arm of the police, the constitution is inapplicable. Unless there is state action involved, a private person can obtain evidence in any manner, even illegally and then anonymously provide it to the police and the police can act on it. in fact, they are obligated to act. In closing, law enforcement would be better off documenting corroboration of their sources information and acting on such corroboration instead of fabricating how they encountered the defendants. Finally, why any law enforcement agency of officer would fabricate the basis of the stop or search is dumbfounding considering the catch-all rule applicable in all criminal cases - the defendant must lose. The evidence will come in. Usually its the "inevitable discovery" exception. Or, the "plain view" exception. Isn't it amazing how many people seem to leave illegal guns and drugs right there on the passenger seat in plain view? Anyway, just a humble opinion from a nickel and dime defense attorney. John

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