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

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.


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. That would require seeing what the grand jury saw, and what DEA and other agencies had before they got to the grand jury stage. Furthermore, understanding how DEA uses parallel construction would require really broad access to investigations, as drug cases involve large networks of people. That’s a lot of requests for information Horowitz would, under the current system, be required to get.

And there’s one more thing that likely makes this problem even worse.

As NYT reported in its story on Hemisphere, the actual database is not funded by DEA, but rather by the White House Drug Czar (ONDCP) under the High Intensity Drug Trafficking Area program.

Mr. Fallon said that “the records are maintained at all times by the phone company, not the government,” and that Hemisphere “simply streamlines the process of serving the subpoena to the phone company so law enforcement can quickly keep up with drug dealers when they switch phone numbers to try to avoid detection.”

He said that the program was paid for by the D.E.A. and the White House drug policy office but that the cost was not immediately available.

Officials said four AT&T employees are now working in what is called the High Intensity Drug Trafficking Area program, which brings together D.E.A. and local investigators — two in the program’s Atlanta office and one each in Houston and Los Angeles.

This has always seemed like a ploy to put the program — which parallels earlier dragnet efforts done solely on Executive authority — in the White House, where it is immune from FOIA and even Congressional oversight.

I can well imagine DEA arguing that Horowitz cannot touch anything having to do with HIDTA (and therefore with Hemisphere) because it is a White House, not DEA, program. (Note, in Horowitz’ testimony he said, in addition to his difficulties getting grand jury information, “We have had similar issues raised regarding our access to some other categories of documents.”) Horowitz’s investigation of the “legal authority” for the program may well be stymied by claims of Executive Privilege too.

Michael Horowitz appears to be attempting to conduct a badly needed investigation that examines potentially grave Constitutional problems with our Drug War. Will  Eric Holder permit him to do that work?

Update: I neglected to link to this post from bmaz right after the Reuters report came out. As he says, DEA has been doing this for decades. Also, read this post describing a case EFF and ACLU are intervening in, in which there is no legal process shown for a lot of the phone records provided in discovery. This is probably the kind of case we’re looking at with Hemisphere.

9 replies
  1. orionATL says:

    is this program used for penny-ante drug dealers?

    if so, maybe that’s one reason, along with intense pressure to plea barganing and mandatory sentencing, that our jails, private and public are at capacity

    and we rank with the most (other) authoritarian nations in the world in per capita imprisonment.

    and there’s always the big question about any of america’s moral/policing crusades – has it made any difference in drug-using behavior, or in drug selling behavior, or in drug importation or manufacturing in the u.s.?

  2. orionATL says:

    is this program used for penny-ante drug dealers?

    if so, maybe that’s one reason, along with intense pressure to plea barganing and mandatory sentencing, that our jails, private and public are at capacity

    and we rank with the most (other) authoritarian nations in the world in per capita imprisonment.

    and there’s always the big question about any of america’s moral/policing crusades – has it made any difference in drug-using behavior, or in drug selling behavior, or in drug importation or manufacturing in the u.s.?

    • emptywheel says:

      Hemisphere? THey’re using it for the networks–that’s what the call records, and just as importantly, the geolocation give you. So yeah, they’re probably building up from the corners to the bigger dealers. The Reuters stuff? I’m not sure. That may be going internationally downward, so reverse direction.

  3. emptywheel says:

    I’ve added two links — one to a post bmaz did in August and another to an EFF post describing an amicus brief they’re doing in a likely parallel construction case. They both provide some indication of what this looks like on the ground.

  4. Bobster33 says:

    I have mixed feelings regarding these parallel investigations. On one level, this violates the Constitution. On the other, many of these drug kingpins kill those in their way. At one point in Columbia, the jurors would wear masks so that they could not be identified. I am not sure that without safeguards, there would be a lot fewer convictions of drug king pins.

  5. orionATL says:

    bmaz wrote:

    “… 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.

    “1992” bmaz writes.


    this defense attorney has dealt with the moral crusade/policing enhancement known as the “war on drugs” at least since 1992.

    2014 – 1992 = 22 years, 22 years of abusive dea policing and prosecutorial abuse.

    22 years of continuous erosion of constitutional, bill-of-rights protections guaranteed citizens , even drug dealers.

    this relates to my comment at #1.

    what have we gained from these 22 years in terms of “success” for the war on drugs?

    anything at all that benefits our collective interest?

    are drug sales lower?

    is use lower?

    are imports and manufactures lower?

    what is lower?

    why, federal government respect for and protection of citizens constitutional rights, searvh-and-seizure rights.

    the war on drugs, like the war on iraq, and the war on afghanistan, and the war on al-q have been unqualified constitutional, legal, moral, and government-effectiveness disasters for ordinary american citizens.

    at the same time, they have been unqualified successes for politicians supporting them and for policing organiizations at all levels of government.

    22 years.

    22 years of aimless, destructive, inordinately expensive, and often illegal government activity.

Comments are closed.