-Submitted by David Drumm (Nal), Guest Blogger
We have previously discussed the pathetic attempt to justify the seizure of every American’s phone data based on its “contribution” in apprehending terrorists. We also discussed the conflating of successful NSA programs overseas with the domestic metadata collection to give the impression that the domestic collection is contributing to the hunt for terrorists. The massive NSA surveillance utterly failed to detect the Boston Marathon bombings. It is not surprising that government officials would try to connect the NSA surveillance with terrorism prevention: polls suggest that Americans are more willing to accept the surveillance if it helps reduce the threat of terrorism. However, there is a lucrative and successful use of the NSA’s collection of all communications – the Drug War.
A secretive unit of the U.S. Drug Enforcement Administration (DEA), the Special Operations Division (SOD) has been working with the NSA and its massive database to detect illegal drug activity and then route that information to local authorities. Federal agents are trained to cover up the origins of the information. Harvard Law School professor Nancy Gertner noted that: “It is one thing to create special rules for national security. Ordinary crime is entirely different.”
An example occurs when the SOD tells state police to look for a specific vehicle at a specific location at a specific time. The trooper then pulls the vehicle over for some real or imagined infraction and a “clever” drug dog named Hans is brought in. The investigation looks like it began with the traffic stop and the SOD tip is never revealed. This process is known as “parallel construction,” and is used to hide the unwarranted origin of information.
Vice chairman of the criminal justice section of the American Bar Association, James Felman, says “It strikes me as indefensible.” Concealment of the circumstances under which a case begins “would not only be alarming but pretty blatantly unconstitutional” according to defense attorney Lawrence Lustberg. Ezekiel Edwards, director of the American Civil Liberties Union’s Criminal Law Reform Project said: “The DEA is violating our fundamental right to a fair trial. 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.”
Another DEA coverup technique is to claim the information came from an informant. A current federal prosecutor pressing a DEA agent for more information and was finally told by a DEA supervisor that the tip had come from SOD via a NSA intercept. The federal prosecutor was so irate about being lied to, the prosecutor never filed charges.
The appeal of drug-related asset forfeiture provides the motivation. Proceeds from asset forfeiture provide an inexhaustible supply of police jurisdictions eager to play the “parallel construction” game. As long as they get a piece of the action.
However, all is not lost for defense attorneys. Any large drug seizure where the vehicle just “happened” to be pulled over is a red flag. Why did the officer select this vehicle to pull over while giving numerous other vehicles a pass for the same infraction? When the officer gets on the stand to testify about his reasons for the stop, an attorney familiar with the use of Bayes’ Theorem can show that the officer is probably, can reasonably assumed to be, lying. The hypothesis being tested is that the officer pulled over a particular vehicle only because of a traffic infraction. The probability of a vehicle getting a pass for the same infraction from the same officer is the key.
Below is a video of Dr. Richard Carrier explaining the use of Bayes’ Theorem:
H/T: Juan Cole, John Shiffman and Kristina Cooke, Brian Fung, Kevin Drum, Emma Roller, Ilya Somin.
Exclusive: IRS manual detailed DEA’s use of hidden intel evidence
According to the document, IRS agents are directed to use the tips to find new, “independent” evidence: “Usable information regarding these leads must be developed from such independent sources as investigative files, subscriber and toll requests, physical surveillance, wire intercepts, and confidential source information. Information obtained from SOD in response to a search or query request cannot be used directly in any investigation (i.e. cannot be used in affidavits, court proceedings or maintained in investigative files).”
http://uk.reuters.com/article/2013/08/07/uk-dea-irs-idUKBRE9761B620130807
Watch that latest news video from the AOPA, which illustrates how they handle such “problems.” Records have a way of disappearing. The agencies can be worse than the TV character, Sgt. Schultz.
OS,
Now that there is evidence that the DEA is feeding information to the drug police, I would think that every defendant who was convicted by the use of a “tip” from an alleged informant, would be filing appeals sooner than later.
raff: ” Doesn’t this put a lot of convictions at risk of being over turned due to perjury??”
*********************************
Probably not, because you have to catch them first. Given the stonewalling and secrecy about this stuff, Brady is just an interesting legal fiction.
When the President lies on the stage of a comedian, is THAT when we impeach?
Conservatives must be torn in two. Do we go after the President for his continued lies and risk exposing the inner workings of the NSA, that which our guy created amid the fear-stink after 9/11, a shameful apparatus we have voted to fund every year since? Do we pull that tapestry thread?
Until this happens, and serious, actual consequences emerge for illegal conduct, America’s woes will only deepen.
Great article David. It is amazing how it always seems to come down to money! As suggested earlier, why isn’t the DEA and the NSA using this wonderful technology to actually put some banksters in jail? Doesn’t this put a lot of convictions at risk of being over turned due to perjury??
OS,
Great video from Pence!
Gene I have to say the Gov’t has had their effect to some degree because sometimes I do stop and think do I want to post that? (I responded to a tweet by Rep Rohrebacher (sp?) and he has been tweeting back and I respond, I do think hmmm should I be saying these things to someone from the gov’t?)
The upside is I say Yep I do want to post that, and anyway it’s too late. My opinions are all over the internet
leejcaroll,
I’m not saying anything here I’m unwilling to say to their faces.
AP,
Thanks for the “Oversight” video.
Reminds me of:
(Highway 61, Bob Dylan).
New jobs program … eh?
leejcaroll,
Brrr … I felt that sudden chill … well said
SwM,
Yep, ap has long been one of the good guys who has never given up on the innate goodness of the rest of us. Patience is a virtue ap possesses.
“The first time i heard about Bays Theorem i had the same reaction. Why doesn’t everybody know about such a useful tool.”
For the same reason most people don’t know their civil rights or why the sky is blue, marty. In part, because of the deliberate “dumbing down” of school curricula. I’m probably in the last generation that was actually expected to not only learn something in school, but to learn across a broad spectrum to create a well rounded education. A stupid and ignorant population is much easier to manipulate than an educated populace. That’s why Jefferson thought the value of education to a democracy was paramount:
And that is what it comes down to: oligarchs in the form of fascists, plutocrats and kleptocrats don’t want to trust our government to We the People. They want that control for themselves to use towards furthering personal profits and other more nefarious agendas of social control.
It’s easier to steal something from someone if they don’t know they have it or understand how it works or its importance in the first place.
Nal,
There is a post at the Guardian that backs up your post:
(Guardian, “The biggest threat to America? The size of its own military budget”). Keep up the good work Nal.
If the DEA managed to follow this money all the way back to the banksters and Wall Street people who wash and invest all this moolah for the drug lords, then I might rethink my position.
But, until then:
Bayes’ Theorem has too much math for me but I accept Nal’s analysis because the years have taught me I can trust Nal’s reasoning ability. Prosecutors beware … in order to discover my bias you’re going to have to ask some pretty illuminating questions during voir dire.
Blouise, no, all they have to do is go through your postings, etc. (like for all of us) if they want to know our biases.
OS,
Great video –James Pence!
You are welcome, ap. You have certainly been out front on this issue. As more has been revealed, I better understand where you are coming from.
AP part of the problem is when it first became obvious we were being lied to, in Watergate, others including Gonzales, O. North and others they were never called to account, furthering the correct perception that if you are in government you can lie to congress and the people with impunity.
(Im sure it happened before Watergate but seems to have been more obvious and conscience-less since then)
The first time i heard about Bays Theorem i had the same reaction. Why doesn’t everybody know about such a useful tool.
I look at it as. Upon learning new information on an old problem you must change you mind based on learning of new information.
This constant lying is absolutely toxic to a representative democracy. Power in a system like ours is supposed derive from the collective will of the people, and lying forces us to base our societal decision-making upon false premises. It subverts our collective will and risks the trust that is the fuel of our society.
-from the link, posted by Swarthmore mom
Excerpt from link, posted at 11:13, by Swarthmore mom
Parallel construction may not be new, but NSA technology makes it much, much worse.
Arguably the single most controversial aspect of that initial Reuters report was its disclosure of the practice of “parallel construction.” Per the article, agents were instructed to hide the involvement of the Special Operations Division (the unit that distributes information acquired from national security sources) from “investigative reports, affidavits, discussions with prosecutors and courtroom testimony.” Furthermore, agents were instructed to use “normal investigative techniques to recreate the information provided by SOD.”
As troubling as this practice appears—and make no mistake, it is without question disturbing to think of law enforcement officers being told to conceal information from the judicial system—it is not exactly a new one. There has never been a one-to-one mapping between investigation and prosecution. While the Brady Rule requires that the prosecution disclose exculpatory evidence to the defense, it has never been taken to mean that police or prosecutors must provide details on every aspect of their investigations. And traffic stops,both legitimate and pretextual, have long served as a basis for further investigation of suspects.
In theory, the balance to this information asymmetry comes from the adversarial structure of our justice system. The prosecution must prove the defendant’s guilt beyond a reasonable doubt, using a coherent, convincing chain of evidence. The defense has a variety of tools at their disposal to keep the prosecution (and in turn the police) honest.
In practice, NSA’s tools have the power to fundamentally alter this power dynamic. Large-scale data analysis is often described as “connecting the dots,” but, given enough data points on a large enough piece of paper, it is possible to draw almost any picture one would like.
Put another way, we all break the law constantly. Until recently, the difficulty of investigation meant that obscurity alone could insulate us from police overreach. This is no longer the case. Modern technology such as that employed by NSA makes the process of “parallel construction” almost trivially easy, which in turn dramatically expands the investigatory powers of the police.
In the end, it’s the lying that matters most.
One last thing: somewhere along the way, someone decided that the investigative utility that federal agencies can derive from information gathered by NSA and other national security-oriented sources is both too important and too legally tenuous to risk it being challenged in court. Law enforcement, from federal agencies all the way down to the local police force, is supposed to be the mechanism by which society protects itself. When agents of that protection are instructed to lie to circumvent the very civil liberties that our society is built upon, then it raises very uncomfortable questions about what we are trying to protect in the first place.
Setting aside sociopathy and entertainment, we only ever lie when the cost of telling the truth is higher than we are willing to pay. Why else would we undertake the cognitive, moral, ethical, logistical, and social burdens that come with lying? When it comes to counterterrorism, NSA, and the modern American national security apparatus in general, many of our leaders and government agencies operate as if the cost of truth is very high indeed, on almost every occasion. Director of National Intelligence James Clapper performed a similar analysis when he chose to give a “least untruthful” answer to Senator Ron Wyden on the subject of mass data collection. The Central Intelligence Agency did the same when it denied the existence of a drone program. And now we learn that DEA hides the truth of its investigations as part of conventional, every-day law enforcement.
This constant lying is absolutely toxic to a representative democracy. Power in a system like ours is supposed derive from the collective will of the people, and lying forces us to base our societal decision-making upon false premises. It subverts our collective will and risks the trust that is the fuel of our society.
(Thanks, Swarthmore mom.)
nick spinelli 1, August 10, 2013 at 8:54 am
… The NSA has always been the most shadowy part of out intelligence community. We now know why.
==========================
It is military. The Posse Comitatus law made it a crime to use the military for domestic law enforcement of any kind.
For good reason, the soul of police work is not the soul of military work.