Reuters broke quite a significant story this week after it gained access to classified documents from a secretive branch of the Drug Enforcement Agency called the Special Operations Division, or SOD. The unit, which partners with more than 20 federal law enforcement agencies, was created in 1994 in an effort to fight drug trafficking by Latin American cartels, and it originally had only a few dozen employees.
SOD now employs hundreds of agents and its goal has apparently shifted from preventing the drug trafficking, then considered a national security concern, to investigating ordinary criminal activity by U.S. citizens.
According to Reuters, what the SOD does now is collect all the information secretly gathered through government surveillance into a massive database called DICE. It then pores over the data and funnels it to federal agents and local police as tips about possible criminal activity.
The problem? When law enforcement receives a SOD tip, it cannot reveal the source of the information. Instead, police and federal agents are directed to pretend they found the information on their own and construct a fake investigation to support their pretense. Shockingly, in many cases law enforcement has concealed SOD involvement and passed off their sham investigations as genuine -- even to the point of misleading criminal prosecutors and judges.
If true, this could indicate that untold thousands of criminal defendants have been deprived of due process. In particular, these reverse-engineered investigations meant to hide the original sources of evidence would appear to violate those defendants' Sixth Amendment right to confront all of the witnesses or evidence to be used against them in court.
When the original source of the evidence is concealed, the defendant cannot do that. There is no way of knowing if that original source was untrustworthy, or if it might also be in possession of information that might serve to exonerate the defendant. There is also no way to tell if the original source violated the constitution in order to obtain that evidence.
When law enforcement violates the constitution to get evidence for criminal cases, any evidence they obtain may be inadmissible in court. Furthermore, any information subsequently discovered that wouldn't have been found except through the constitutional violation can also be suppressed. And, when criminal investigations are shown to have been tainted in this way, law enforcement has not, until now, been given a "do over."
The Department of Justice, which oversees the DEA, would not comment on the program. Two senior DEA officials interviewed by Reuters, however, defended the reverse-engineering of criminal investigations to keep the program secret. They insisted that not only is the technique legal, but also that it's used virtually every day to prosecute Americans.
Source: Reuters, "Exclusive: U.S. directs agents to cover up program used to investigate Americans," John Shiffman and Kristina Cooke, Aug. 5, 2013