-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: