Ever since Edward Snowden’s leaks began to trickle out of Glenn Greenwald’s space at the Guardian, many in the United States have wondered aloud: “How often is this NSA-collected data used in non-terrorism, criminal prosecutions in the United States?”
A number of insights gleaned over the past week point to some very distressing possible answers.
Reuters today reports on a division of the Drug Enforcement Agency, the Special Operations Division, that collects NSA intelligence information and uses it to pursue drug investigations, albeit many with an international connection. The SOD office is staffed by representatives from at least 26 agencies, including the DoD, IRS, CIA, FBI, and DHS. Open source research indicates that the SOD is at the center of US government efforts to blur the boundaries between the wars on terror and drugs.
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.
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.
Often, the report says, defendants and attorneys never become aware of where the original investigative lead came from because they accept plea deals and never go to trial.
Another story in today’s news describes how the NSA hands over “non-terror intelligence” to domestic law enforcement agencies.
The "Patriot Act" enables the NSA to legally hand over information to the Justice Department about suspected criminal activity inadvertently derived from foreign intelligence surveillance, said Stewart A. Baker, a former general counsel for the NSA who later led the 250-person policy directorate at the Department of Homeland Security during the second Bush administration.
"Criminal activity really has to be as plain as the nose on your face before NSA will turn anything over to the Justice Department," said Baker, now a partner at the powerhouse Washington law firm Steptoe & Johnson. "The last thing an intelligence agency wants is to become enmeshed in the criminal justice system."
NSA handoffs only occur in cases where there has been "substantial criminal activity" that meets a pre-defined Justice Department standard of evidence and passes review by senior officials, according to the former Justice Department official who spoke on condition of anonymity.
FBI investigators and Justice Department prosecutors protect the intelligence-agency origins of such investigations to prevent criminal defense lawyers from summoning intelligence agents into court to testify.
"The problem you have is that in many, if not most cases, the NSA doesn't tell DOJ prosecutors where or how they got the information, and won't respond to any discovery requests," said Haddon, the defense attorney. "It's a rare day when you get to find out what the genesis of the ultimate investigation is."
The former Justice Department official agreed: "A defense lawyer can try to follow the bouncing ball to see where the tip came from — but a prosecutor is not going to acknowledge that it came from intelligence."
Among the critical legal questions raised by the trickle-down of NSA intelligence to state and local law enforcement agencies, through the FBI or the Special Operations Division of the DEA, is that defendants are robbed of an opportunity to challenge the constitutionality of the surveillance that initially pointed authorities in their direction.
For example, when the DEA’s SOD gets a tip from the NSA about drug sales happening in Massachusetts, the SOD can inform the Boston Police Department that X person is likely a drug dealer. Using that information, the BPD could fabricate information supposedly given to them by a confidential informant that would justify an investigation of its own. Then, police and prosecutors can subpoena the same cell phone records that the DEA gave to them based off of an NSA tip, and using this information, obtain search warrants leading to the suspect’s arrest. The initial NSA intelligence tip would likely never be disclosed, even if the case went to trial.
That subterfuge is scandalous not simply because it denies the accused access to the evidence that led to their arrest and charge, but also because it shields the underlying surveillance from constitutional challenge. Up until the Verizon Business order was disclosed in early June 2013, organizations like the ACLU lacked ‘standing’ to sue over these programs. The government argued that we didn’t have the right to bring constitutional challenges to its spy laws because we couldn’t prove that our clients had been spied on, and in February 2013, the Supreme Court agreed.
If people facing drug charges in the United States knew that the initial tip that led to their arrest came from one of the post-9/11 surveillance programs that organizations like the ACLU believe violate the Fourth Amendment, someone might actually get to challenge those programs in court. That’s likely a major part of the reason why, as Stewart Powell reports today, “FBI investigators and Justice Department prosecutors” work hard to “to prevent criminal defense lawyers from summoning intelligence agents into court to testify.”
Now we know that this trickle down occurs, even in seemingly routine drug cases, but there's a lot more we do not yet know.
How many of these referrals of intelligence are there? Former Bush administration officials told the press that “there have been as many as 20 to 30 NSA referrals of non-terrorism criminal activity to the Justice Department,” but that number seems awfully low. If the number really is so small, the Reuters reporters struck journalism gold when they found the Florida prosecutor they quote as having been “pissed” to learn that the initial intelligence in a drug case he was working on came from NSA.
There are reasons to believe the numbers are much, much higher, contra both the unnamed former Bush administration officials and the “current and former officials” who told Powell that “NSA limits non-terrorism referrals to serious criminal activity inadvertently detected during domestic and foreign surveillance.”
One of those reasons is that agencies like FBI, DHS and DEA sub-agency SOD may have access to millions of bulk telephone records collected by NSA, giving them an edge via associational surveillance that may be passed down to state and local law enforcement for routine drug busts.
Here's some background from my colleague at the ACLU, Patrick Toomey, who explains what we now know about the NSA's incredibly permissive rules governing the querying of its massive metadata database:
Intelligence officials have repeatedly said that the NSA queries its call-records database only when there is "reasonable suspicion, based on specific and articulated facts" that an identifier — such as a telephone number — is linked to specific foreign terrorist organizations. They have frequently cited one statistic to back up these assertions: According to officials, the NSA queried fewer than 300 unique identifiers under this program in 2012.
As we have pointed out, though, even if the government ran queries on only 300 unique identifiers in 2012, those searches implicated the privacy of millions of Americans. Intelligence officials have explained that analysts are permitted to examine the call records of all individuals within three "hops" of a specific target. As a result, a query yields call information not only about the individual thought to be associated with a specific foreign terrorist organization, but about all of those separated from that individual by one, two, or three degrees. Even if one assumes, conservatively, that each person has an average of 40 unique contacts, an analyst who accessed the records of everyone within three hops of an initial target would have accessed records concerning more than two million people. Multiply that figure by the 300 phone numbers the NSA says that it searched in 2012, and by the seven years the program has apparently been in place, and it quickly becomes clear that official efforts to characterize the extent and impact of this program are deeply misleading.
This much we've known for several weeks. But thanks to the documents released yesterday, we now have a better idea about what happens to the information that's pulled up through queries. All of this information, the primary order says, is dumped into something called the "corporate store." Incredibly, the FISC imposes no restrictions on what analysts may subsequently do with the information. The FISC's primary order contains a crucially revealing footnote stating that "the Court understands that NSA may apply the full range of SIGINT analytic tradecraft to the result of intelligence analysis queries of the collected [telephone] metadata." In short, once a calling record is added to the corporate store, anything goes.
More troubling, if the government is combining the results of all its queries in this "corporate store," as seems likely, then it has a massive pool of telephone data that it can analyze in any way it chooses, unmoored from the specific investigations that gave rise to the initial queries. To put it in individual terms: If, for some reason, your phone number happens to be within three hops of an NSA target, all of your calling records may be in the corporate store, and thus available for any NSA analyst to search at will.
In other words, the NSA is allowed to dip into its 'corporate store' of hundreds millions if not billions of phone records for any reason at all.
Are those records also available to analysts at the FBI, and the DEA’s SOD? Are they dumped routinely into the National Counterterrorism Center, to which numerous agencies with domestic law enforcement missions have access?
Do these federal agencies with blurry foreign-domestic law enforcement missions have access to the NSA's 'corporate store'? If they do, what are the rules governing the mining of that data and the sharing of findings with state and local law enforcement? What are the rules around using it as the (secret) basis for opening domestic drug (or, for that matter, tax fraud) investigations into people?
Answering these questions is absolutely vital, because they get at the heart of the problem with rampant state secrecy, and its trickling down from the top levels of the US military to state and local police departments.
The spies often tell us we shouldn't have to worry about losing our privacy if we have nothing to hide, but what about them? It's clear that the secrecy surrounding their intelligence programs exists not only to preserve "sources and methods" and public safety, as they say, but primarily to protect the programs themselves from public outrage and lawsuits.
When NSA bulk metadata or warrantless intercepts of US communications are used in the domestic drug war, defendants should be informed and thus given a chance to challenge the constitutionality of the surveillance that led to their targeting.
Thanks to Edward Snowden, many of the NSA's programs are now partially exposed to the light of day, and to the necessary lawsuits that might kill them once and for all. But we need Congress to act, too, to shine further light on the trickle down of intelligence information from the military to domestic police. The collection of vast troves of data about the associational habits of US persons is ripe for drug war abuse. We need to know the full extent of the problem so that we can stop it.
After all, the last thing we need in this mass incarceration nation is a more powerful drug war, staffed by agencies with limitless information about our private lives. It's time for the government to come clean about what it does with the vast troves of information it stores about each of us. If the stories published today are any indication, we are not going to like what we find.