About the Reuters DEA Special Operations Division Story

Reuters is out this morning with what is being hailed as somewhat of an eye opening expose on the Drug Enforcement Agency’s Special Operations Division. The article is very good and should be read in full, but I would like to make a couple of quick points.

First, the headline is misleading. The caption is:

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

Well, not really (and, in fairness, the actual body of the article is about a practice that is a result of the SOD). DEA’s Special Ops Division is neither new nor secret in the least, and there is no way to “cover it up”. Google it; I got “About 289,000 results (0.29 seconds)” as a return. You will get something similar. The revelation that SOD was used in the Viktor Bout case is also not new, here is a Time story detailing it from 2011.

In fact, any criminal defense attorney who did cocaine hub conspiracy cases in the 90’s could have told you most of the Reuter’s article in their sleep. That was exactly the scene that DEA-SOD was born from. As the war on drugs went nuclear, the DEA devised what they termed the “Kingpin Strategy”:

In 1992, the DEA instituted the Kingpin Strategy that focused investigative and enforcement efforts on specific drug trafficking organizations. The DEA planned to dis- able major organizations by attacking their most vulnerable areas—the chemicals needed to process the drugs, their finances, communications, transportation, and leadership structure.

The Kingpin Strategy held that the greatest impact on the drug trade took place when major drug organizations were dis- rupted, weakened, and destroyed. This strategy focused enforcement efforts and resources against the highest-level traffickers and their organizations, and provided a systematic way of attacking the various vulnerabilities of the organiza- tions. By systematically attacking each of these vulnerabilities, the strategy aimed to destroy the entire organization, and with it, the organization’s capacity to finance, produce, and distrib- ute massive amounts of illegal drugs. Each blow weakened the organization and improved the prospects for arresting and prosecuting the leaders and managers of the organizations.

The Kingpin Strategy evolved from the DEA’s domestic and overseas intelligence gathering and investigations.

And from Kingpin sprung the Special Operations Division:

Under the original Kingpin Strategy, DEA headquarters often dictated the selection of Kingpin targets. In response to the SACs’ concerns, Administrator Constantine agreed to allow them more latitude in target selection. In conjuction with this decision, he established the Special Operations Division at Newington, Virginia, in 1994 to coordinate multi-jurisdictional investigations against major drug trafficking organizations responsible for the flow of drugs into the United States.

The above is from a history of the DEA right there on the Justice Department’s website, so “covering up” SOD is kind of a non-starter. However, what IS being covered up, and what really is the substance of the body of the Reuter’s article, is the practice of “parallel construction” of cases:

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.
…..
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.”

Yes. Exactly. And, as the “senior DEA officials” admitted, this, too, is not new in the least. Again, the Reuter’s quote of the incredulous former Judge Nancy Gertner aside, any number of longtime members of NACDL could have told you all of this at any point in time since the mid 90’s.

The takeaway that is important from the Reuters piece is that all the frothing about “golly, what if those NSA capabilities bleed out of terrorism and into traditional criminal cases” is nuts. It already is, and has been for a long time. It is the “clean teaming” of criminal prosecutions. And it is a direct and tangible fraud upon defendants, the courts, Due Process and several other important Constitutional concepts.

It is not a matter of what if it happens, it IS happening.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
10 replies
  1. orionATL says:

    i always curious about the efficacy of these policing strategies.

    how well, if at all, did the kingpin strategy work to limit drug distribution in the u.s. ?

    did it succeed in doing what was envisioned for it at its inception?

  2. lefty665 says:

    @orionATL: It is just effective enough to keep the price up, to ensure massive funding for the cops, and to keep the jails full. Last but not least there’s enough cash sloshing around to corrupt everything it touches. That includes our criminal justice system, military and extra-corrupting the banks.

    Seems like that hits most of the objectives. What more could anyone ask for?

  3. orionATL says:

    @lefty665:

    that’s kinda what i was thinking. all this damned secrecy and all this money spent secretly – for what?

    i haven’t noticed anything in the papers about a shortage of illegal drugs.

  4. peasantparty says:

    Bmaz,

    Thanks for pointing out the lack of Due Process and the illegal ways this is being used.

    Next thing you know they are gonna search all your communications to see if what you are doing is cause for a damn insurance company not to pay their share of a bill!

  5. Philip Munger says:

    I worked in law enforcement and public safety for over 13 years. Creating “parallel construction” is as old as the drug war. Narcotics officers aren’t just allowed to lie in court, prosecutors encourage it to the point that narcs have joked for decades that what they do under oath is the act of “testilying.”

    It is no surprise that the DEA and NSA are sharing information this way, and that the DEA MO has morphed into taking advantage of new technologies and structures. A lot of upper midlevel DEA, DHS and NSA Contractor employees have similar backgrounds in municipal and state-level police agencies, and have retired from the latter, and are double-dipping salary-wise, in their new jobs at Fed agencies. They go to the same workshops, hire the same trainers and drink at the same lounges in the evening, after attending their “seminars.”

  6. Francois T says:

    @Philip Munger:
    No wonder it is almost impossible to have an honest discussion about it in Washington DC: Way too much money and power involved.

    Gonzalo Lira was totally right, and then some about the sorry state of US lack of justice.

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