This guest post was written by ACLU of Massachusetts legal fellow Nashwa Gewaily

In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings.

This statement is an excerpt from Justice Robert H. Jackson’s dissent in U.S. ex rel. Knauff v. Shaughnessy, a 1950 case upholding the government’s use of “secret evidence” to permanently deny entry to a WWII “war bride” seeking to reunite with her American husband in the U.S.  Citing wartime necessity and national security interests, the government successfully advanced the notion that justice does not require the disclosure of evidence that might, in the assessment of the authorities, endanger the public interest.

If this sounds like the unfortunate missteps of a bygone era of wartime hysteria, fast-forward to last month’s revelations that the Drug Enforcement Agency’s secretive Special Operations Division [SOD] has been initiating drug investigations by relaying NSA intelligence to its agents. When using this intelligence, SOD officials instruct investigators to conceal and lie about the source of information against their targets. In other words: the DEA is using secret evidence against suspects — evidence that can’t be challenged because it’s being kept secret in the same of security. 

To summarize previous reports, it was revealedthat

[A] secret branch of the DEA called the Special Operations Division [SOD] – so secret that nearly everything about it is classified, including the size of its budget and the location of its office — has been using the immense pools of data collected by the NSA, CIA, FBI and other intelligence agencies to go after American citizens for ordinary drug crimes. Law enforcement agencies, meanwhile, have been coached to conceal the existence of the program and the source of the information by creating what’s called a “parallel construction,” a fake or misleading trail of evidence. So no one in the court system – not the defendant or the defense attorney, not even the prosecutor or the judge – can ever trace the case back to its true origins.

A common example of parallel construction begins with the SOD’s use of information drawn from NSA intercepts, phone data, wiretaps, or informants to tip off local agents about a suspect. Agents are told that they should be at a truck stop at a certain time, looking out for a specific car.  They are directed to pretend to conduct traditional police work – checking for broken taillights or looking out for an illegal turn, for instance – waiting for independent probable cause to stop the car.  A routine traffic stop is then “constructed;” a drug-sniffing dog might be brought to the scene; and a plausible trail of evidence that covers up the source of the original SOD tip-off is created. 

As one former DEA agent put it: “It’s just like laundering money – you work it backwards to make it clean.”

More recent reports indicate that the IRS is engaged in similar activity.  This revelation is based on directives included in an IRS manual – later deleted – instructing agents to omit from their reports any reference to SOD-sourced information. The New York Times further revealed attempts by other federal agencies to access NSA data in order to “curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement."

While the underlying justifications of secret evidence usage have been generally constant, this most recent incarnation of the practice is much more scandalous:  unlike in the war bride case, secret evidence is being used against American citizens in addition to foreign nationals, in criminal cases in addition to civil immigration hearings, for run-of-the-mill narcotics investigations in addition to cases involving purported national security threats.  Further, the government’s actual evidence is often kept secret even from prosecutors and judges, all the while keeping defense attorneys in the dark.  

This practice must be placed in a broader conceptual context to fully appreciate just how insidious normalization of these methods will be in eroding even our most basic Constitutional protections – namely, the rights to due process, to confront the evidence against you, and to challenge unreasonable government searches.  What the DEA revelations illuminate, once again, is an established historical pattern of displacing Constitutional guarantees in favor of unconstrained law enforcement under the pretext of national security.

We saw this before with the Cold War-era practice of mass-deporting political activists based on secret evidence of Communist affiliations.  The tactic was revived in 1996 with the Antiterrorism and Effective Death Penalty Act, which was introduced following the World Trade Center and Oklahoma City bombings, and expanded the use of secret evidence to detain and deport immigrants.  Under the Act, foreign nationals are not entitled to disclosure of information collected for “national security purposes” and “shall not be entitled to suppress evidence that the alien alleges was unlawfully obtained.” The gravity of this obstruction is difficult to overstate:

Secret evidence in the form of classified information often consists of mere rumor and innuendo. It is often unverified and unverifiable. It has not been, and cannot be, tested for reliability under rigorous cross-examination. Sometimes, it can be something as ‘secret’ as a newspaper clipping the substance of which could be refuted if only it was known.

As it turned out in the case of the WWII war bride, the classified, sensitive evidence behind her permanent exclusion from the country was a litany of hollow claims of her dangerousness, made by a jealous former lover of her husband.

And that sort of evidence – evidence upon which authorities should never have relied, let alone built a case – isn’t an anomaly.  One of countless illustrative examples of what can go wrong is the story of Hany Kiareldeen, a Palestinian immigrant who had overstayed his student visa and was detained for 19 months on the basis of secret evidence that he plotted to bomb the World Trade Center as an active member of a terrorist group:

The main charges apparently came from Kiareldeen's ex-wife, who was locked in a custody battle with him and had repeatedly made false accusations against him. The INS evidence alleged that Kiareldeen had hosted a meeting with terrorists in his Nutley, N.J., apartment 18 months before he had moved there.

Mr. Kiareldeen is now free, after seven judges reviewed his case and flatly rejected government claims that he posed a threat to national security. Still, he has never seen the classified report used to jail him.

Of course, the fundamental problem with the DEA’s secretive use of NSA intelligence is not that the concealed evidence is necessarily unreliable – rather, it’s that the same bedrock Constitutional principles are jeopardized when defendants are denied the basic right to know the evidence against them, regardless of the specific facts of the case.  

In the criminal context, authorities seem to be skirting Fourth Amendment protections against unreasonable searches and seizures by covering up the questionable secret intelligence driving investigations with “independent” probable cause.  While parallel construction often involves pretextual traffic stops targeting specific suspects, the Supreme Court’s decisions in this area – namely Whren v. United States (1996) – seem to suggest that this might be okay, as long as independent justification for the stop exists. 

The questions we must ask then are: is the original NSA evidence collection a Fourth Amendment violation, and would the contraband seized from the stop therefore be inadmissible as the “fruit of the poisonous tree”?  Does the pragmatic reality that the government will avoid courtroom scrutiny and that defendants will almost always take the plea bargain render the Fourth Amendment meaningless in this context?  And, of course, how will the defendant even move to suppress potentially misleading, erroneous, prejudicial, or unlawful content of an initial FISA application or an informant’s statement if he is kept from knowing about its existence to begin with?

Ultimately, the government is particularly concerned with dodging judicial review of the statutes authorizing expansive surveillance programs:  

The 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…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.

As David Cole has observed, “[t]he adoption of the Antiterrorism Act of 1996 and the Patriot Act of 2001 show how little has been learned from the abuses of the past and how alluring the concept of unrestrained intelligence investigations remains.”  

In the same vein, the spillover of secret evidence use from the realms of immigration cases, asylum hearings, and military commissions into the sphere of everyday domestic criminal investigations shows just how powerful the ripple effects can be when “special rules” for national security proliferate unrestrained.