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DEA Directed Secret Cover-Up in Drug Cases: Report

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By Brett Snider, Esq. on August 07, 2013 1:36 PM

The DEA has been secretly using information from informants, telephone records, and intelligence intercepts to aid criminal arrests by local law enforcement agents -- who then cover up the investigation's tracks, according to a recent report.

Undated documents obtained by Reuters refer to a Drug Enforcement Administration program of allegedly "recreating" an investigative trail post-arrest in order to "cover up where the information originated," especially when that information came from a classified source.

Based on Reuters' report, the alleged DEA cover-up program raises a few legal concerns.

Special Operations Division

The unit tasked with distributing covert information to local law enforcement is called the Special Operations Division (SOD). Two dozen partner agencies including the FBI, CIA, and NSA comprise this joint task force, Reuters reports.

Unlike secret programs run by the NSA or FBI which were created to root out foreign intelligence leads, the SOD's express purpose is to assist the DEA and local law enforcement in investigating drug crimes committed by Americans and others on American soil.

However, like the NSA's recently disclosed PRISM program, the SOD unit does utilize tips from NSA wiretaps as well as a database called DICE which consists of approximately "1 billion [phone] records" gathered by the DEA through subpoenas and search warrants, according to Reuters.

SOD uses this information to deliver leads to local police about where to find and arrest drug suspects. Local agencies then cover up the SOD connection using a tactic called "parallel construction."

What Is 'Parallel Construction'?

SOD's "parallel construction" paradigm called for law enforcement to use secret information to locate and arrest drug suspects. But then, as a former DEA agent explained to Reuters, officers would "work [the investigation] backwards to make it clean."

For example, SOD would tip off law enforcement agents to look for a certain vehicle at a truck stop. "After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip," according to Reuters.

Legal experts tell Reuters this practice may be OK to establish probable cause for an arrest, but it "may violate pretrial discovery rules by burying evidence" about how the investigation truly began.

Constitutional Concerns

There are a number of potential issues raised by this shady (and possibly unlawful) SOD operation, but here are a few constitutional concerns:

  • Fourth Amendment. Although the test for probable cause is an objective test, the need to protect the public from police cover-ups amounting to bad faith may be enough to determine there was no probable cause for an arrest.
  • Fifth Amendment. Fabricating an evidentiary trail by itself (not to mention lying under oath) is enough for a defendant to claim he was denied due process of the law.
  • Sixth Amendment. Failing to disclose evidence of the real genesis of the arrest is denying the defendant evidence that is favorable to her defense and denying her a fair trial.

Any one of these violations would potentially be sufficient to put a criminal prosecution on hold. In light of Reuters' report, time will tell how the DEA's SOD-tainted cases will fare in court.

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