Agents of a secretive DEA unit routinely receive tips from US intelligence agencies, including NSA intercepts, a report states. The sources are then concealed with “parallel construction” of evidence – a troubling practice that many call unconstitutional.
A document obtained by Reuters “specifically directs” the agents of the Special Operations Division (SOD) to cover up their information sources from investigative reports, affidavits, discussions with prosecutors and courtroom testimony.
Such sources may include intelligence intercepts, wiretaps, three-letter-agencies’ informants and a massive database of telephone records – all of which could reportedly be used to help the authorities launch criminal investigations of Americans.
“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” reads the document, which is said to be presented to the agents of this Drug Enforcement Administration (DEA) unit.
SOD is comprised of two dozen partner agencies, which include the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security, and much of the unit’s work is classified.
The unit is said to be offering at least three services to federal, state and local law enforcement agents: coordinating international investigations; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE.
Instead of revealing the agencies’ part in any launch of a criminal case, the agents are instructed to use “normal investigative techniques to recreate the information provided by SOD.”
This in effect means certain “tips” might be given to the agents and the police on condition they never talk about them in court.
A former US federal agent who received such tips from SOD described the process to Reuters. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it.”
Following the arrest, the agents would then pretend the investigation started with the traffic stop, he said.
This process, referred to as “parallel construction,” is a routine practice used by the agents, two senior DEA officials told the news agency, speaking on condition of anonymity.
“Parallel construction is a law enforcement technique we use every day,” one official said, adding that it was “decades old, a bedrock concept” that was used to protect sources and investigative methods.
While most of “a dozen” of other agents interviewed by Reuters were said to have defended the tactics as “legal,” former DEA agent Finn Selander has compared it to a criminal activity.
“It’s just like laundering money – you work it backwards to make it clean,” Selander, who is now a member of the Law Enforcement Against Prohibition group, explained.
Meanwhile, lawyers, prosecutors and legal experts have been outraged by the report, saying that if the so-called “parallel construction” was indeed used for disguising how an investigation began it explicitly violates pretrial discovery rules.
Such practice “would not only be alarming but pretty blatantly unconstitutional,” Lawrence Lustberg, a New Jersey defense lawyer has said.
In particular, it would violate the defendants’ Constitutional right to a fair trial, since if they don’t know how an investigation really began, they cannot ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
By use of the SOD program the US government could also “skirt” the established court procedures, by which judges privately examine sensitive information (informant’s identity, classified evidence etc.) to determine whether the information is relevant to the defense – something which some lawyers find unacceptable.