There have been many stories reported, thanks in part to the now infamous Edward Snowden, about the scope of NSA’s surveillance programs. When first reported, the NSA and the Whitehouse were quick to reassure the American people that the scope of the surveillance was limited to matters of national security. Therefore, many people may think that the NSA leaks were a matter of foreign policy. However, the NSA’s surveillance programs are being used by the Drug Enforcement Agency (DEA) to investigate domestic crime, primarily drug offenses.
According to Reuters, as reported in the Huffington Post and the Washington Post, the DEA has a secret unit called the Special Operations Division (SOD). The SOD obtains information from intelligence intercepts, wiretaps, informants and a massive database of telephone records and shares said information with local law enforcement agencies to help them launch criminal investigations of Americans. The law enforcement agents are directed to conceal how the investigations truly begin and are further trained to “recreate” the investigative trail to effectively cover up the originating source. This process is referred to as “parallel construction.”
An example of “parallel construction” would be that the SOD contacts local or state police and directs them to pull over a certain vehicle traveling on the interstate. The police would then conduct a routine traffic stop and find an excuse to have a drug dog search it. After an arrest is made, the officers would pretend that their investigation began with the traffic stop, not with the SOD tip.
So how can American’s be protected? Decades ago the United States Supreme Court decided two cases that provide protections to defendants in a criminal case. One was Roviaro v. United States, 353 U.S. 53 (1957) which held that the government must disclose the identity of an undercover witness if it will help the defendant prove he’s not guilty. The other case was Brady v. Maryland, 373 U.S. 83 (1963) which held that the prosecution must turn over all exculpatory evidence to the defendant and failure to do so is a violation of due process.
Even though the government has an affirmative duty to turn over the above referenced evidence, prosecutors may not know that the NSA was involved. Therefore, it is important for defense attorneys to drill down the source of the investigation to establish whether or not the NSA or SOD was involved. If revealed, the information may lead to an opportunity for defendants to challenge the admissibility of the evidence obtained based on a violation of their constitutional rights.
The impact of the NSA’s involvement in ordinary domestic criminal investigations is yet to be seen.
SCOTT KING GROUP
Russell W. Brown, Jr.
Attorney At Law
Merrillville, IN 46410