Tuesday, August 06, 2013

More evidence of the government's assault on liberty, privacy, and the Constitution

By Michael J.W. Stickings


A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin -- not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence -- information that could reveal entrapment, mistakes or biased witnesses.

"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

Because the DEA's Special Operations Division (SOD) -- which also includes the FBI, CIA, NSA, IRS, and DH -- is supposedly targeting (bad) people suspected of drug-related crimes, this will no doubt be written off by many, including the surveillance state apologists, as necessary, just like the supposedly anti-terror surveillance conducted by the NSA.

But it should be deeply worrying to anyone who cares about the Constitution and the protection of people's essential rights, including a defendent's rights in a criminal case:

"That's outrageous," said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. "It strikes me as indefensible."

Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin "would not only be alarming but pretty blatantly unconstitutional."

Lustberg and others said the government's use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant's identity or classified evidence, to determine whether the information is relevant to the defense.

"You can't game the system," said former federal prosecutor Henry E. Hockeimer Jr. "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?"

In a rights-based constitutional system like the one in the U.S., the line should be drawn as close as possible to the Bill of Rights, erring on the side of individual rights instead of enabling government authoritarianism. Yes, some of these people may indeed be criminals, but that's not the point. Even criminals have rights and deserve to have their rights protected, and of course the possibility of abuse here is immense, just as it is with the NSA's surveillance program, just as it is throughout the national security / intelligence community, which is why there need to be safeguards, rigorous oversight, and punishment of the abusers.

But don't forget that this isn't just about an accused's right to a fair trial. This is about intelligence and law enforcement agencies working collaboratively to target people and launch criminal cases based on massive government surveillance of Americans.

Which means it's about the government trampling on liberty, privacy, and the very Constitution it is meant to uphold.


Of course, much of this has been known for a long time (though the media are now paying more attention to it, and doing some investigative work, thanks to Snowden and Greenwald and others drawing attention to what's going on).

The point, though, is that what the NSA is doing isn't just limited to the NSA, and so what is being done supposedly for national security is also being done domestically to track, and prosecute (with basic rights undermined), criminal activity generally, with the surveillance net cast widely and with the entire country, it seems, caught in it, guilty of something or not.

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