How DEA Keeps Defendants in the Dark on Role Intelligence Agencies Play in Their Prosecution
Drug Enforcement Agency training guides reveal details about how law enforcement agencies go about concealing how evidence from intelligence agencies may have been used to prosecute a person. They show how DEA agents, law enforcement and prosecutors cooperate together to essentially sidestep constraints created by the United States Constitution and statutory requirements for open and fair criminal trials.
Journalist CJ Ciaramella obtained multiple versions of a DEA training guide in response to a Freedom of Information Act (FOIA) request submitted on August 5, 2013, for “all DEA memoranda, training materials and official policies regarding ‘parallel construction,’ the act of recreating an investigative trail to obscure the original methods used.”
The request for records was prompted by a report from Reuters published the same day, which claimed the DEA has a “secretive” unit “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.”
Agents involved in making arrests pretend their investigations begin with traffic stops, not tips from the unit, the Special Operations Division, which is made up of “two dozen partner agencies,” including the CIA, NSA, FBI, the Homeland Security Department and Internal Revenue Service.
Based off the training guides [PDF], “parallel construction” has been taught by the Justice Department’s training center since at least 2007.
“The documents showcase the DEA’s strategies for keeping defendants in the dark about the role intelligence agencies play in ordinary criminal investigations,” explained ACLU National Security Project staff attorney Patrick Toomey. “These policies undercut the due process rights of criminal defendants, including their right to a fair trial, and prevent courts from considering the legality of controversial surveillance programs.”
“In particular, the training documents illustrate how the DEA relies on willful blindness—an approach the DEA describes as ‘See No Evil’—to artificially limit the information turned over to criminal defendants pursuant to court rules. And they explain how DEA agents can take affirmative steps, using ‘parallel construction,’ to help ensure the true sources of their evidence and tips are never revealed to defendants, judges, or the public,” according to Toomey.
A 2007 version of the training guide declares, “In this class we will discuss what happens when the new national consensus concerning information sharing meets the American constitutional and statutory requirements for an open and fair criminal trial.” It adds that while the “intelligence community” may not always help law enforcement make their cases the “government has worked out procedures for accommodating the sharing” of intelligence with law enforcement “for criminal investigations.”
Four methods are used protect intelligence sources and methods used to assist criminal investigations. The Classified Information Procedures Act (CIPA) can be an asset in keeping a defendant from learning about this information. The Foreign Intelligence Surveillance Act (FISA) can be used. Parallel construction can be employed. (The fourth method is censored in the released documents.)
Instructors training class members on how to use these methods recognize they are controversial and legally questionable:
An undated presentation contains this “See No Evil” slide:
CIPA, according to the slides, makes it possible for the government to have classified information reviewed before trial and by a judge without the defendant having any access to the material. The judge solely determines the information’s relevancy.
Prosecutors can argue to a judge during this process that information on where the suspicion against a defendant truly originated is not “exculpatory to the defendant.” It can also argue the “interests of national security outweigh the relevance of the information to the defendant,” slides from the undated presentation advise.
The slides show the government may choose to employ a Taint Review Team when “neither the prosecution nor defense is aware of classified information related to the defendant.” This is a “special team of prosecutors” tasked with handling CIPA litigation “concerning classified information.”
In the 2012 version of the training guide, a section characterizes “rules of discovery in criminal cases” as the “IC’s nemesis”—an enemy of the intelligence agencies.
The government has been relying upon a Supreme Court decision, Scher v. United States, from 1938. It involved a “prohibition agent,” who received a “tip,” engaged in surveillance and saw the defendant “handling whiskey.”
“The Supreme Court said the defendant had no discovery right to learn of the source of the tip,” and “the source was unimportant (not relevant) to the reason the law enforcement acted as he did,” one slide reads.
There were also a set of training slides from 2009 released to Ciaramella, which would seem to affirm that officers are taking evidence obtained from the NSA or other intelligence agencies and developing pretexts for traffic stops so it appears the stop was the beginning of the criminal investigation.
Here is a section about a lecture that was given to law enforcement officers in Macon, Georgia:
The slides show that prosecutors file motions to “restrict the defendant’s access to the information provided to the state and local organization” by the DEA.
To protect evidence related to the DEA information, a commander “advises” an officer to watch for vehicle and make a stop if probable cause exists. The patrolman’s report will reflect that the supervisor told him to “watch for a certain make and model of care and to make” a stop if probable cause exists.
By engaging in certain methods, DEA can transfer probable cause “laterally.”
DEA may request that a case be dismissed if the judge has ruled against them and there is a “need to protect the ‘walled off’ source or collection method.”
“Bottom line: DEA will rarely if ever disclose privileged or sensitive information from the other side of the ‘wall.'” And, “remember, contraband is contraband” and a “wall-off or pretext stop is constitutionally permissible provided” there is “an independent basis supporting the action.” The “limits of any search” must be “respected,” according to the presentation.
Contrary to the government, ACLU attorneys have argued that “the Supreme Court has repeatedly made clear that when the government chooses to criminally prosecute an individual it may not keep secret the sources of its evidence.”
From Jencks v. United States:
…The Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense…
“Simply put, the government may not have it both ways—its secrecy and its prosecution—when an individual’s liberty is at stake. Indeed, due process requires not only notice to a defendant, but may also call for disclosure of underlying surveillance applications or intercepts,” the ACLU attorneys also maintain.
In instances where “parallel construction” is used, courts should be strongly considering whether to legally or factually suppress the evidence obtained against a defendant.