The Drug Enforcement Agency has been using information gleaned from intelligence wiretaps and a database of telephone records in order to build cases against American citizens, according to Reuters.
The cases being built by the DEA rarely have any connection to national security and law enforcement has been instructed to hide the original source of their information from both defense lawyers and prosecutors. Documents obtained by Reuters show that officers are shown how to "recreate" the investigative trail to conceal where the information came from. This could be a violation of a defendant's right to a fair trial since they would be unable to know if law enforcement made any mistakes in the investigation, according to Reuters.
"I have never heard of anything like this at all" Nancy Gertner, a Harvard Law School professor, said. "It is one thing to create special rules for national security. Ordinary crime is entirely different. It sounds like they are phonying up investigations."
Gertner told Reuters that she and other legal experts are troubled by the program. While the recently revealed National Security Agency's surveillance program targets terrorists the DEA program targets normal criminals, according to Reuters.
The program is run by the very secretive Special Operations Division of the DEA. Almost all of what the SOD does is classified including the location of its Virginia office.
"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document given to agents said. The document goes on to explain how SOD's involvement needs to be omitted from all official reports and that officers need to us "normal investigative techniques to recreate the information provided by SOD," according to Reuters.
An anonymous former federal agent described the process.
"You'd be told only, 'Be at a certain truck stop at a certain time and look for a certain vehicle,'" the agent told Reuters. "And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it."
Lawrence Lustberg, a New Jersey defense attorney, believes that if the government is concealing the way drug investigations are started that it "would not only be alarming but pretty blatantly unconstitutional," according to Reuters.
"You can't game the system," former prosecutor Henry Hockeimer said. "You can't create this subterfuge. These are drug crimes, not national security cases. If you don't draw the line here, where do you draw it?"
Some prosecutors have been forced to drop cases because they did not feel that the case would be able to stand in court if it came from an SOD investigation.
"Lying about where the information came from is a bad start if you're trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court," the prosecutor who wished to remain anonymous told Reuters.
DEA agents have said that while SOD tips were not always helpful that they have helped catch many criminals that might have otherwise gotten away.
"It was an amazing tool," a retired federal agent told Reuters. "Our big fear was that it wouldn't stay secret."
