Earlier this year, I highlighted the fact that unconstitutional surveillance was in many ways birthed by the pointless, misguided and utterly failed, “War on Drugs.” Here’s an excerpt from that post, titled, How NSA Surveillance Was Birthed from the Drug War – The DEA Tracked Billions of Phone Calls Pre 9/11:
The now-discontinued operation, carried out by the DEA’s intelligence arm, was the government’s first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime. It was a model for the massive phone surveillance system the NSA launched to identify terrorists after the Sept. 11 attacks. That dragnet drew sharp criticism that the government had intruded too deeply into Americans’ privacy after former NSA contractor Edward Snowden leaked it to the news media two years ago.
The similarities between the NSA program and the DEA operation established a decade earlier are striking – too much so to have been a coincidence, people familiar with the programs said. Former NSA general counsel Stewart Baker said, “It’s very hard to see (the DEA operation) as anything other than the precursor” to the NSA’s terrorist surveillance.
The extent of that surveillance alarmed privacy advocates, who questioned its legality. “This was aimed squarely at Americans,” said Mark Rumold, an attorney with the Electronic Frontier Foundation. “That’s very significant from a constitutional perspective.”
In light of this, it should surprise no one that the DEA continues to use unconstitutional, “classified” methods when targeting suspects. Since the collection of this evidence would be questioned in a courtroom, the DEA suggests using a procedure known as “parallel construction” to avoid any controversy in the public record. This is how it works.
Drug Enforcement Administration training documents released to MuckRock user C.J. Ciaramella show how the agency constructs two chains of evidence to hide surveillance programs from defense teams, prosecutors, and a public wary of domestic intelligence practices.
In training materials, the department even encourages a willful ignorance by field agents to minimize the risk of making intelligence practices public.
The DEA practices mirror a common dilemma among domestic law enforcement agencies: Analysts have access to unprecedented streams of classified information that might prove useful to investigators, but entering classified evidence in court risks disclosing those sensitive surveillance methods to the world, which could either end up halting the program due to public outcry or undermining their usefulness through greater awareness.
So the solution? Use the info anyway and just hide it from the public.
A tactic known as “parallel construction” allows law enforcement to capitalize on intelligence information while obscuring sensitive sources and surveillance methods from the prosecution, defense and jury alike. DEA training documents suggest this method of reconstructing evidence chains is widely taught and deployed.
Last August, Reuters first reported on the practice of parallel construction by the DEA’s Special Operations Division (SOD), a secretive unit that includes representatives from the FBI, CIA and NSA. Slides obtained by Reuters defined the method as “the use of normal investigative techniques to recreate the information provided by SOD.” But documents released to Ciaramella indicate that DEA trainers routinely teach the finer points of parallel construction to field agents and analysts across the country, not just within SOD.
The module puts the issue of using sensitive intelligence in law enforcement a bit more delicately. Per the 2012 lesson plan, the main problem with combining intelligence collection with law enforcement investigations “is the high potential for disclosure of these sensitive sources of information in our open, public trial system.”
In addition to potential national security risks of exposing classified information and constitutional quandaries, an earlier version of the module highlights another issue with introducing sensitive or clandestine evidence into domestic trials: “Americans don’t like it.”
Controversy notwithstanding, parallel construction apparently makes the DEA’s list of such palatable techniques. The modules make clear that the idea is to shape evidence chains so that neither the prosecution nor the defense are to be made aware of classified information, if it can be helped.
This is how it works in real life:
But the released training modules provide no guidance on key issues noted in documents obtained by Reuters last August. In particular, the SOD slides barred agents from disclosing classified sources on affidavits or in courtroom testimony. Under this strain of parallel construction, the court would never know the classified origins of an investigation.
“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,” as one former federal agent described the process to Reuters.
This is not what freedom looks like.