By John Shiffman and David Ingram
WASHINGTON (Reuters) – The Justice Department is reviewing a U.S. Drug Enforcement Administration unit that passes tips culled from intelligence intercepts, wiretaps, informants and a large telephone database to field agents, White House Press Secretary Jay Carney said Monday.
Reuters reported Monday that agents who use such tips are trained to “recreate” the investigative trail to effectively conceal the DEA unit’s involvement from defense lawyers, prosecutors and even judges, a policy many lawyers said could violate a defendant’s right to a fair trial. Federal drug agents call the process of changing the true genesis of an arrest “parallel construction,” according to a training document.
Although the DEA program may use legal means to collect and distribute the tips, critics say that by hiding the origin of a case, defendants may not know about potentially exculpatory evidence.
“It’s my understanding… that the Department of Justice is looking at some of the issues raised in the story,” Carney said during his daily briefing at the White House on Monday.
Carney referred reporters to a Justice Department spokesman, who confirmed that a review was under way, but declined further comment.
In an interview with Reuters last month, two senior DEA officials defended the program, saying it has been in place since the late 1990s, has been reviewed by every Attorney General since then, and is perfectly legal. One DEA official said “parallel construction” is used every day by agents and police nationwide and is “a bedrock concept.”
The program, run by DEA’s Special Operations Division, differs in several respects from National Security Agency activities revealed by former NSA contractor Edward Snowden. Among these is disclosure to the accused.
Collection of domestic data by the NSA and FBI for espionage and terrorism cases is regulated by the Foreign Intelligence Surveillance Act. 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 the DEA’s case, a document reviewed by Reuters shows that federal drug agents are trained to “recreate” the investigative trail to conceal the SOD’s involvement. Defense attorneys say the practice prevents defendants from even knowing about evidence that might help their cases.
In a statement, the NSA said that it cannot use the telephone database program exposed by Snowden for law enforcement purposes. However, the NSA said that it does coordinate with law enforcement.
“This coordination frequently includes sanitizing classified information so that it can be passed to personnel at lower clearance levels in order to meet their operational requirements,” the NSA statement said. “If the Intelligence Community collects information pursuant to a valid foreign intelligence tasking that is recognized as being evidence of a crime, the intelligence community can disseminate that information to law enforcement, as appropriate.”
While the NSA activities are aimed at terrorists, the SOD program focuses on drug dealers and money launders. That distinction troubles some civil libertarians, who fear secretive measures designed to target terrorists are being used to catch ordinary criminals.
Jerry Cox, president of the National Association of Criminal Defense Lawyers (NACDL), said defense lawyers “long feared that overbroad national security policies would become the norm for all criminal prosecutions and today we know our concerns were not unfounded.”
Ezekiel Edwards, director of the American Civil Liberties Union’s Criminal Law Reform Project, said the SOD procedures violate the fundamental right to a fair trial. “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,” he said. “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.”