NSA tips off law enforcement, asks them to keep the practice secret
Just days after the NYT wrote about the NSA denying other federal intelligence agencies access to their surveillance tools comes the disclosure that a US Drug Enforcement Administration unit called Special Operations Division (SOD) has been channeling information collected by the NSA to law enforcement agencies in order to help them start investigations of suspected criminals.
The SOD, whose existence is little known to the greater public, is a sort of middleman that receives information regarding traditional criminal activities and suspected perpetrators gathered by the NSA via wiretaps, informants, intelligence intercepts, and decides how much of it to share with which field offices and agents.
According to the information and documents Reuters received from unnamed officials, SOD is comprised of FBI, CIA, NSA, IRS and DHS agents, and has been started in 1994.
Its work is now mostly classified, and one can see immediately why: the agents receiving SOD tips are instructed not to reveal that this is how their investigation begun – not to the defense lawyers, and sometimes not even to judges and the prosecution – and to create a believable alternative story.
For example, the NSA would tip off agents about drugs being moved in a specific vehicle that would be at a specific place at a specific time, and they would usually find an unconnected reason to stop that vehicle and effect a search. They would then claim that the investigation formally started with the traffic stop.
Reuters received the explanation and confirmation of such happenings both from former DEA and other federal agents, as well as two current DEA officials who said that the practice was legal and not at all unusual, and that it was done to protect sources and investigative methods.
But is it legal? According to Nancy Gertner, a former US federal judge who never heard of the practice, the existence of the practice is worrying. “It is one thing to create special rules for national security,” she said. “Ordinary crime is entirely different.”
Legal experts are troubled by potential violations of a defendant’s Constitutional right to a fair trial. If the accused individuals and their defense lawyers don’t know how the investigation actually began, how can they know where to look for potential exculpatory evidence?
A few of the interviewed defense lawyers appraised about the practice are naturally incensed, and some believe it unconstitutional. Even some prosecutors don’t condone it – one current federal prosecutor revealed that he even decided not to prosecute a case after finding out that the investigators lied to him about where the information came from.
SOD has its big and small successes, and apart from handing out information collected by the NSA, foreign law enforcement agencies and domestic wiretaps, it also distributes those collected via communication and electronic data gathered by the DEA via legal means, as well as aids US law enforcement agencies coordinate international investigations.
The practice’s effectiveness hinges on it remaining for the most part secret. According to some of the interviewed agents, most of the time the cases don’t even end up in court as the defendants plead guilty before trial and don’t ask to see the evidence against them. But there have been cases when the charges were dropped because the case couldn’t be prosecuted without revealing SOD’s involvement in the investigation.