A Reuters exclusive published this morning details a startling discovery about the criminal case procedures of the Drug Enforcement Administration: documents obtained by the news organization reveal that agents of the DEA have been trained to "recreate" the trail of evidence for the purpose of concealing the original source of information.
Some experts, like Nancy Gertner of the Harvard Law School who served as a federal judge between 1994 and 2011, believe that this violates a defendant's Constitutional right to fair trial on the grounds that the defendant will not know how to review exculpatory evidence that could reveal witness biases, mistakes worthy of mistrial, or entrapment on the part of police officers. "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 said.
According to Reuters, a secret unit that has been officially a part of the DEA since 1994 but comprised of individuals from the FBI, CIA, NSA, IRS and DHS (you know, the all-star government organizations) known as the Special Operations Division. The job of SOD was originally to combat drug cartels in Latin America, but they often end up targeting Americans in their efforts to prevent the expansion of narcotics.
Although the SOD's work is used in cases against defendants, DEA agents are instructed to not reveal the ways that the SOD is used in court, instead to use "normal investigative techniques to recreate the information provided by SOD." This means that by the time the case reaches a courtroom, any evidence that SOD was involved has been essentially wiped from the record.
Although a Department of Justice spokesman declined Reuters' request for comment, senior and former DEA officials defended the program, saying that parallel construction is not only legal but a regularly utilized law enforcement technique. A former DEA official described the process, saying that he would be told by SOD only to "'be at a certain truck stop at a certain time and look for a certain vehicle.' So we'd alert the state police to find an excuse to stop that vehicle and have a drug dog search it."
The process of parallel construction starts at the traffic stop, where the officials then recreate the information to "protect sources and investigative methods." Another official said of the process that "[it's] a law enforcement technique we use every day... it's decades old, a bedrock concept."
Lawyers commenting on the topic have said that although parallel construction could be used to establish probable cause for an arrest, to use it as a method of concealing the initial origins of an investigation may violate pretrial rules. Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association has said that it's "outrageous, [and] it strikes me as indefensible."
Members of the ACLU have taken to Twitter in the wake of the news:
Law enforcement agents directed to conceal intelligence origins of criminal investigations. http://t.co/YkA9XPydVm
— Jameel Jaffer (@JameelJaffer) August 5, 2013
Govt does 4th amendment laundering to use domestic spying info for drug cases http://t.co/7pHeql7opx
— Michelle Richardson (@Richardson_Mich) August 5, 2013