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Warrantless Wiretapping Encourages Constitutional Rights Abuses

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Michael Komorn

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Warrantless wiretapping is a terrible idea and is unconstitutional. It was created at a time when America was thought to be at WAR with the terrorists. 17 years later, America was always at war with the terrorists. Illegal wiretaps of all communications continue, but are solely focused on Americans, and more specifically focused on the war on drugs, not terrorism.

Not to be outdone, the NSA and DEA know that their secret illegal wiretaps are illegal and would not be used as evidence in the courts, so they have created "parallel construction". Parallel construction means to assemble the evidence while hiding the source of the information. This means automatically denying the right of the accused to see the evidence and witnesses presented against him. A long held tradition that any evidence used against you in court must be scrutinized for constitutional issues and be legitimate and truthful.

https://www.reuters.com/article/us-dea-sod/exclusive-u-s-directs-agents-to-cover-up-program-used-to-investigate-americans-idUSBRE97409R20130805

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Exclusive: U.S. directs agents to cover up program used to investigate Americans

12 MIN READ

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WASHINGTON (Reuters) - 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.

“It is one thing to create special rules for national security,” Gertner said. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”

 

THE SPECIAL OPERATIONS DIVISION

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. 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.

Today, much of the SOD’s work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked “Law Enforcement Sensitive,” a government categorization that is meant to keep them confidential.

“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.”

A spokesman with the Department of Justice, which oversees the DEA, declined to comment.

But two senior DEA officials defended the program, and said trying to “recreate” an investigative trail is not only legal but a technique that is used almost daily.

A former federal agent in the northeastern United States who received such tips from SOD described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said.

“PARALLEL CONSTRUCTION”

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.”

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

 

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

“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.

Some defense lawyers and former prosecutors said that using “parallel construction” may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.

A QUESTION OF CONSTITUTIONALITY

“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?”

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.”

CONCEALING A TIP

One current federal prosecutor learned how agents were using SOD tips after a drug agent misled him, the prosecutor told Reuters. In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.

“I was pissed,” the prosecutor said. “Lying about where the information came from is a bad start if you’re trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court.” The prosecutor never filed charges in the case because he lost confidence in the investigation, he said.

A senior DEA official said he was not aware of the case but said the agent should not have misled the prosecutor. How often such misdirection occurs is unknown, even to the government; the DEA official said the agency does not track what happens with tips after the SOD sends them to agents in the field.

The SOD’s role providing information to agents isn’t itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court.

The DEA has long publicly touted the SOD’s role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don’t accidentally try to arrest each other.

SOD‘S BIG SUCCESSES

The unit also played a major role in a 2008 DEA sting in Thailand against Russian arms dealer Viktor Bout; he was sentenced in 2011 to 25 years in prison on charges of conspiring to sell weapons to the Colombian rebel group FARC. The SOD also recently coordinated Project Synergy, a crackdown against manufacturers, wholesalers and retailers of synthetic designer drugs that spanned 35 states and resulted in 227 arrests.

Since its inception, the SOD’s mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit’s annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.

Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE.

The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said.

About 10,000 federal, state and local law enforcement agents have access to the DICE database, records show. They can query it to try to link otherwise disparate clues. Recently, one of the DEA officials said, DICE linked a man who tried to smuggle $100,000 over the U.S. southwest border to a major drug case on the East Coast.

“We use it to connect the dots,” the official said.

“AN AMAZING TOOL”

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.

Tips from domestic wiretaps typically occur when agents use information gleaned from a court-ordered wiretap in one case to start a second investigation.

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.

Current and former federal agents said SOD tips aren’t always helpful - one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away.

“It was an amazing tool,” said one recently retired federal agent. “Our big fear was that it wouldn’t stay secret.”

DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.

Edited by Blake Morrison

 

https://www.techdirt.com/articles/20140203/11143926078/parallel-construction-revealed-how-dea-is-trained-to-launder-classified-surveillance-info.shtml

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Parallel Construction Revealed: How The DEA Is Trained To Launder Classified Surveillance Info

from the americans-don't-like-it dept

Last summer, Reuters revealed how the NSA and other surveillance organizations would share infowith the DEA and other law enforcement agencies, but then tell them to reconstruct the evidence via a process called "parallel construction," so that the surveillance would not then be discussed in court. This is highly questionable, and probably illegal, as a defendant has the right to know all of the evidence being used against him or her, and should also be told how that evidence was gathered, to make sure the collection was legal. But what's being done with parallel construction, is that the intelligence community is able to give "hints" to law enforcement, allowing them to come up with various pretenses for an investigation, avoiding ever having to reveal that the NSA or others used potentially illegal surveillance efforts. One example given in that Reuters report was how DEA agents would suddenly be given a tip like this: "Be at a certain truck stop at a certain time and look for a certain vehicle." The DEA would then have the local police come up with some pretense to stop the truck... and then when evidence is found they can claim it was a random traffic stop, when the reality is anything but that. 

After the Reuters report, C.J. Ciaramella used Muckrock to request all DEA training material and official policies concerning "parallel construction" and recently received nearly 300 pages of documents, much of it redacted, but still which reveals that this is common practice at the DEAand widely known. Much of it is in the form of PowerPoint presentations, complete with speaker notes, which say things like how careful DEA agents need to be around classified information because "it can screw up your investigation."
c3GSF0f.png
Another slide notes "the devil's in the details" and explains:
Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community. If they find Bin Laden's satellite phone and then pin point his location, they don't have to go to a court to get permission to put a missile up his nose. 

We are bound, however, by different rules. 

Our investigations must be transparent. We must be able to take our information to court and prove to a jury that our bad guy did the bad things we say he did. No hiding here. However, we are also bound to protect certain pieces of information so as to protect the sources and methods. 

To use it....we must properly protect it.
There are also training materials that discuss how parallel construction works, as well as the fact that in "the new post-9/11" era, a "national consensus" has been formed making it easier for the intelligence community and law enforcement to share information. It even refers to the federal courts as the intelligence community's "nemesis." 

A lot of the documentation deals with how to deal with having classified information, and the focus seems to be on keeping that information away from anyone involved in the case. There is -- I kid you not -- a special group of prosecutors called "the Taint Review Team" -- to be called in when things get... well... tainted.
hHX0sMq.png
In one part of the presentation, they talk about all sorts of ways to try to get a judge to avoid revealing classified information to defendants, and then have a plan "if all else fails" which includes redoing the indictment or dropping the case. That same presentation shows that there should be a "see no evil" plan -- which explains why DEA agents are often just told "go to this truck stop and look for this truck" without knowing any more. That way they "saw no evil" with evil being defined as questionably obtained intelligence.
EX0g2AD.png
It appears that much of the DEA's arguments here rely on the Supreme Court's ruling in 1938 in Scher v. United States, in which a law enforcement agent was told some things by a source, and used that information to find and arrest the defendant handling whiskey (during Prohibition). The court said that how the agent found out about the information doesn't matter, so long as the agent saw illegal acts himself. And thus, the Supreme Court "enabled" the idea of parallel construction. That case pops up repeatedly throughout the documents, basically telling DEA agents: expect information to come from intelligence sources, but do your best to never find out why they know this stuff. 

Another presentation asks "what is the problem with combining IC (Intelligence Community) collection efforts & LEA (Law Enforcement Agency) investigations in US courtrooms?" and then explains that it presents constitutional problems... and that "Americans don't like it!"
sNS3wDQ.png
The note on that one points out that "even though we seek to protect our citizens, generally, we can only use techniques to achieve that objective, which are acceptable to our citizens." But that's not what they're actually doing or teaching. Instead, they're teaching how to keep doing the constitutionally questionable things that Americans don't like... and then hiding it from the courts, the American public and even the law enforcement folks themselves, in order to create a sort of plausible deniability that launders the fact that potentially illegal and unconstitutional surveillance was used to create the basis of the legal case. 

There's some more information in the documents, but it all basically points to the same basic thing: the less that law enforcement folks know, the better. If the law enforcement knows too much, call in the "Taint Review Team" to see what they can do to clean up, and see what you can use to get the judge to exclude classified evidence. All in all, it adds up to a nice little plan to allow the NSA to illegally spy on people, tell law enforcement just enough to target people, without ever revealing how they were caught via unconstitutional means.

 

Why are the Democrats voting with the Republicans to give President Trump these powers to illegally spy on everyone ? It makes no sense. Where is the #Resistance ? Probably the secret blackmailing files have already been completed on all of the congress members and now the NSA controls our government and other countries' governments forever.

 

https://www.wired.com/story/fisa-section-702-renewal-congress/

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LOUISE MATSAKIS
SECURITY
01.11.1804:19 PM
CONGRESS RENEWS WARRANTLESS SURVEILLANCE—AND MAKES IT EVEN WORSE

IN 2013, EDWARD Snowden revealed that the National Security Agency was legally collecting millions of Americans’ phone calls and electronic communications—including emails, Facebook messages, and browsing histories—without a warrant. Congress has now decided not only to reauthorize these programs, but also to expand some of their most invasive techniques.

The spying initiatives Snowden brought to light are authorized under Section 702 of the 2008 FISA Amendments Act, which was set to expire later this month. On Thursday, Congress voted down an effort to reform Section 702, and instead passed a bill that expanded warrantless surveillance of US citizens and foreigners. The newly passed bill reauthorizes Section 702 for six years, long after President Trump’s first term in office will have expired.

The amendment that the House of Representatives shot down would have added significant privacy safeguards to the law, including the requirement that intelligence agents get a warrant in many cases before searching through emails and other digital communications belonging to US citizens. The bill Congress did pass, meanwhile, codifies some of the most troubling aspects of Section 702, according to privacy advocates. The legislation still needs to pass in the Senate, where fewer representatives are interested in significantly reforming the law.

Warrantless
Section 702 is intended to allow intelligence officials to electronically surveil non-US "persons reasonably believe to be located outside the United States” without a warrant. The NSA collects millions of video chats, instant messages, and emails under Section 702 by compelling companies like Facebook, AT&T, and Google to hand them over.

The law also allows the FBI to search through the NSA’s database without a warrant, constituting what critics like Democratic Senator Ron Wyden call a backdoor to the Fourth Amendment. The law technically only authorizes the collection of communications belonging to foreign individuals, but citizens and permanent residents easily get swept into the dragnet. For example, Americans who communicate with foreigners may be included.

That appears to be the case with Michael Flynn, Trump’s former national security adviser. Flynn’s communications with Sergey Kislyak were collected when intelligence officials conducted routine surveillance on the former Russian ambassador to the US.


A flyer advocating against the failed pro-privacy amendment to FISA Section 702 circulated by the House Permanent Select Committee on Intelligence.
During the lead-up to the vote, the House Permanent Select Committee on Intelligence, chaired by Republican Congressman Devin Nunes, circulated a fear-mongering flyer that said adding privacy protections to Section 702 would make it impossible for law enforcement to surface intelligence about a hypothetical suspicious vehicle parked outside the Washington Monument.

The misleading rhetoric around Section 702 tripped up Trump Thursday, as he appeared to contradict his own party’s stance on the bill just hours before the vote. In a tweet, the president implied falsely that the law had given intelligence officials the legal authority to spy on his campaign. The message came merely a day after White House press secretary Hope Hicks released a statement in support of the law.

 
 

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@realDonaldTrump
“House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?
7:33 AM - Jan 11, 2018
19,120 Replies   17,217 Retweets   72,465 likes



The president was likely steered away from his official position by a Fox News broadcast, during which Libertarian Judge Andrew Napolitano told the president that Section 702 “is not the way to go.” Trump’s tweets appeared moments after the segment. An hour later, Trump reverted to the party line. In a follow up tweet, he said “we need” Section 702. Frankly, the president doesn’t seem to understand how Section 702 works. He’s not alone.

FISA Advisor
Remember when Trump said Obama had wiretapped Trump Tower? Those were the days
Representative Devin Nunes has spent months fudging how the FISA purpose actually works to help take heat off of the Trump administration
Here's what you need to know about "unmasking," the part of FISA that gets Trump (wrongly) so worked up

It is a strange web that has been cast over the entire world. Other countries have teamed with AT&T and the NSA to spy on internet, phone and email communications of all citizens and data passing through their systems.

https://www.npr.org/2013/10/23/240163063/government-changes-policy-on-warrantless-wiretap-defendants

http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.html

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