[Update: Oh, look. There's more. "NSA handing over non-terror intelligence.]
Reuters reports this morning that a government agency is using secret tactics to arrest Americans and then fabricating just how they got about doing so. Called SOD, short for “sod-off, you nosey bugger” 1, this DEA program basically uses all sorts of secret NSA type wiretaps, foreign intelligence surveillance, informants and phone records to
stop global terrorism, catch murderers, solve global warming, I dunno, do something with drugs? Arrest those that import them or something I guess? Whatever.
And as is required for governmental agencies in this post-Communist era, everything it does is secret. Oh, and it lies.
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.
In plain words, DEA gets a tip through SOD that some dangerous dude is bringing a shipment of cocaine on a truck from Cuba or some such. They then stop that truck, find the cocaine and then find a traffic violation to justify the stop of the truck. Then they write the report as if the investigation started with the traffic violation, pretending that the rest of it is just a figment of your imagination, like ponies or unicorns or the Constitution.
You see why this is a problem, right? If they don’t know the real reason why you came to be stopped, then you can’t challenge the Constitutionality of that stop. Was the informant your former best friend who has a grudge against you and informed on you for money? You’ll never know. Was the informant a guy with a history of psychiatric illness who sits at the border with binoculars reporting every third car that cross? You’ll never know. Was the informant your own illegally obtained phone records? You’ll never know.
Because the DEA lies to judges, prosecutors and defenders of the Constitution and says that you were “driving erratically”, even if you weren’t. Because who’s going to believe you, George Jung?
To determine the Constitutionality of a stop based on the information of a known informant, you need to know who the informant is and how reliable their information has been in the past. For an unknown informant, the test is even stricter.
It’s like money laundering.
“It’s just like laundering money – you work it backwards to make it clean,” said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.
Rather than disclose SOD, the DEA and the Feds would rather risk the lives of your children by dismissing these charges against these scurrilous narco-terrorists. Because secrecy, in the end, is more important than safety.
As a practical matter, law enforcement agents said they usually don’t worry that SOD’s involvement will be exposed in court. That’s because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.
It’s only the beginning. Don’t you think other agencies are clamoring for this information? Information that is obtained in secret, lied about and can never be revealed to the public except by politicians who refer to is abstractly only to reassure us that, yes, it exists and is for our benefit 2? You think SOD doesn’t already spy on you, without a warrant, despite its blatant unconstitutionality? Consider:
Wiretap tips forwarded by the SOD usually come from foreign governments, U.S. intelligence agencies or court-authorized domestic phone recordings. Because warrantless eavesdropping on Americans is illegal, tips from intelligence agencies are generally not forwarded to the SOD until a caller’s citizenship can be verified, according to one senior law enforcement official and one former U.S. military intelligence analyst. “They do a pretty good job of screening, but it can be a struggle to know for sure whether the person on a wiretap is American,” the senior law enforcement official said.
Wiretap first, Constitutionality maybe. This is NSA+, NSA beyond, NSA before 3. Right under our noses and we’re being sold the story that the shit we smell is roses.
Lagniappe: Talk about confirmation bias and blinders of belief:
Some lawyers say there can be legitimate reasons for not revealing sources. Robert Spelke, a former prosecutor who spent seven years as a senior DEA lawyer, said some sources are classified. But he also said there are few reasons why unclassified evidence should be concealed at trial.
“It’s a balancing act, and they’ve doing it this way for years,” Spelke said. “Do I think it’s a good way to do it? No, because now that I’m a defense lawyer, I see how difficult it is to challenge.“
And that should tell you all you need to know about whether to believe the Government when it says its doing something for your own good. The answer, inevitably and invariably, is no 4.
- No, not really. Special Operations Division. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred. ↩
- Remember, of course, politicians who state definitively that spying and snooping on Americans is only in Rand Paul’s mind. ↩
- Here’s a comparison of SOD and NSA. ↩
- Aren’t footnotes fun? For a slightly more sober (No, not drunk sober) take on this, see this post by bmaz. ↩