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DOJ Inspector General Investigating DEA’s Use of Parallel Construction under Hemisphere

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Screen Shot 2014-04-18 at 11.02.49 AMAs I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.

Of particular interest is this investigation.

Administrative Subpoenas

The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.

The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.

The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.

Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.

Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.

Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.

And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.

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.

[snip]

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.”

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

Presuming that Horowitz is investigating whether DEA’s extensive use of parallel construction complies with the Constitution (and not, as is possible, whether the sources of this information are being adequately buried), this is welcome news indeed.

But it’s also one of several reasons why I’m particularly alarmed, in retrospect, that Horowitz is complaining about his ability to get grand jury information without having to get either Attorney General Holder or Deputy Attorney General James Cole to personally approve it.

After all, the only way you can learn what truly happens in prosecutions that have used parallel construction to hide their sources is to work backward from the actual prosecution. Read more →

White House Drug Czar Helps Pay for CIA-on-the-Hudson

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In its latest update on NYC’s spying on Muslims, the AP reports the program is partially funded by the White House Drug Czar in grants associated with the High Intensity Drug Trafficking Area Program.

Some of that money — it’s unclear exactly how much because the program has little oversight — has paid for the cars that plainclothes NYPD officers used to conduct surveillance on Muslim neighborhoods. It also paid for computers that store even innocuous information about Muslim college students, mosque sermons and social events.

When NYPD Commissioner Raymond Kelly was filled in on these efforts, his briefings were prepared on HIDTA computers.

What the article notes but doesn’t emphasize–but which is the entire point of White House czar positions–is that there is little oversight over how these funds get used. Congress did not get to see a breakout of how the NYPD uses its “war on drugs” funds.

Congress, which approves the money for the program, is not provided with a detailed breakdown of activities. None of the NYPD’s clandestine programs is cited in the New York-New Jersey region’s annual reports to Congress between 2006 and 2010.

The problem with programs run by White House czars is that White Houses of both parties routinely argue that Congress has no legitimate oversight over them.

The White House, typically, refuses to comment.

The White House last week declined to comment on its grant payments.

And, as the AP has pointed out repeatedly in its reporting on this program, no one in New York City is exercising oversight either.

It’s unclear how much HIDTA money has been used to pay for the intelligence division, in part because NYPD intelligence operations receive scant oversight in New York.

The main point of the AP article is that the White House owns this ineffective, abusive spying, just as much as Ray Kelly.

But just as importantly, the use of Drug Czar funds for a program that is every bit as counterproductive and wasteful and stupid as the war on drugs symbolizes just how far those running this program have shielded it from any oversight.