Loretta Lynch Is A Dubious Nominee For Attorney General

CryingJusticeLoretta Lynch is an excellent nominee for Attorney General, and her prior actions in whitewashing the blatant and rampant criminality of HSBC should not be held against her, because she didn’t know that at the time she last whitewashed that criminal enterprise, right?

No. Nothing could be further from the truth.

This is a cop out by Lynch’s advocates. Lynch either knew, or damn well should have known. She signed off on the HSBC Deferred Prosecution Agreement (DPA), if she was less than fully informed, that is on her. That is what signing legal documents stands for….responsibility. Banks like HSBC, Credit Suisse, ING etc were, and still are, a cesspool of criminal activity and avoidance schemes. Willful blindness to the same old bankster crimes by Lynch doesn’t cut it (great piece by David Dayen by the way).

But, all the above ignores the Swiss Alps sized mountains of evidence that we know Lynch was aware of and blithely swept under the rug by her HSBC DPA. So, we are basically left to decide whether Lynch is a bankster loving toady that is her own woman and cravenly whitewashed this all on her own, or whether she is a clueless stooge taking orders to whitewash it by DOJ Main. Both views are terminally unattractive and emblematic of the oblivious, turn the other cheek to protect the monied class, rot that infects the Department of Justice on the crimes of the century to date.

And that is only scratching the real surface of my objections to Lynch. There are many other areas where Lynch has proven herself to be a dedicated, dyed in the wool “law and order adherent” and, as Marcy Wheeler artfully coined, “executive maximalist”. Lynch’s ridiculous contortion, and expansion, of extraterritorial jurisdiction to suit the convenient whims of the Obama Administration’s unparalleled assault on the Rule of Law in the war on terror is incredibly troubling. Though, to be fair, EDNY is the landing point of JFK International and a frequent jurisdiction by designation. Some of these same questions could have been asked of Preet Bharara (see, e.g. U.S. v. Warsame) Loretta Lynch has every bit the same, if not indeed more, skin in the game as Bharara, whether by choice or chance.

Lynch has never uttered a word in dissent from this ridiculous expansion of extraterritorial jurisdiction. Lynch’s record in this regard is crystal clear from cases like US v. Ahmed, Yousef, et. al. where even Lynch and her office acknowledged that their targets could not have “posed a specific threat to the United States” much less have committed specific acts against the US.

This unconscionable expansion is clearly all good by Lynch, and the ends justify the means because there might be “scary terrists” out there. That is just dandy by American “executive maximalists”, but it is toxic to the Rule of Law, both domestically and internationally (See, supra). If the US, and its putative Attorney General, are to set precedents in jurisdictional reach on common alleged terroristic support, then they ought live by them on seminal concerns like torture and war crimes under international legal norms. Loretta Lynch has demonstrated a proclivity for the convenience of the former and a toady like disdain for the latter.

And the same willingness to go along to get along with contortion of the Rule of Law in that regard seems beyond certain to extend to her treatment of surveillance issues and warrant applications, state secrets, over-classification, attack on the press and, critically, separation of powers issues. Those types of concerns, along with how the Civil Rights Division is utilized to rein in out of control militarized cops and voting rights issues, how the OLC stands up to Executive overreach, whether OPR is allowed to continue to shield disgraceful and unethical AUSAs, and whether she has the balls to stand up to the infamously insulated inner Obama circle in the White House. Do you really think Loretta Lynch would have backed up Carolyn Krass and OLC in telling Obama no on the Libyan War Powers Resolution issue?

For my part, I don’t think there is a chance in hell Lynch would have stood up to Obama on a war powers, nor any other critical issue, and that is a huge problem. Krass and Holder may have lost the Libyan WPR battle, but at least they had the guts to stand up and say no, and leave a record of the same for posterity.

That is what really counts, not the tripe being discussed in the press, and the typically preening clown show “hearing” in front of SJC. That is where the rubber meets the road for an AG nominee, not that she simply put away some mobsters and did not disgrace herself – well, beyond the above, anyway (which she absolutely did) – during her time as US Attorney in EDNY. If you are a participant in, or interested observer of, the criminal justice system as I am, we should aspire to something better than Eric Holder. Holder may not have been everything hoped for from an Obama AG when the Administration took office in January of 2009, but he was a breath of fresh air coming off the AG line of the Bush/Cheney regime. Loretta Lynch is not better, and is not forward progress from Holder, indeed she is several steps down in the wrong direction. That is not the way to go.

The fact that Loretta Lynch is celebrated as a great nominee by not just Democrats in general, but the so called progressives in specific, is embarrassing. She is absolutely horrible. If Bush had put her up for nomination, people of the progressive ilk, far and wide, would be screaming bloody murder. Well, she is the same person, and she is a terrible nominee. And that does not bode well for the Rule of Law over the remainder of the Obama Administration.

And this post has not even touched on more mundane, day to day, criminal law and procedure issues on which Lynch is terrible. And horrible regression from Eric Holder. Say for instance pot. Decriminalization, indeed legalization, of marijuana is one of the backbone elements of reducing both the jail and prison incarceration rate, especially in relation to minorities. Loretta Lynch is unconscionably against that (See, e.g., p. 49 (of pdf) et. seq.). Lynch appears no more enlightened on other sentencing and prison reform, indeed, she seems to be of a standard hard core prosecutorial wind up law and order lock em up mentality. Lynch’s positions on relentless Brady violations by the DOJ were equally milquetoast, if not pathetic (See, e.g. p. 203 (of pdf) et. seq.). This discussion could go on and on, but Loretta Lynch will never come out to be a better nominee for Attorney General.

Observers ought stop and think about the legal quality, or lack thereof, of the nominee they are blindly endorsing. If you want more enlightened criminal justice policy, to really combat the prison state and war on drugs, and to rein in the out of control security state and war on terror apparatus, Loretta Lynch is a patently terrible choice; we can, and should, do better.

Remember, the President’s Review Group Consulted with ATF

In a follow-up to its release on the DEA’s use of a license plate reader database the other day, ACLU reveals an email that shows ATF in Phoenix considered using the database to track people leaving gun shows in April 2009.

The April 2009 email states that “DEA Phoenix Division Office is working closely with ATF on attacking the guns going to [redacted] and the gun shows, to include programs/operation with LPRs at the gun shows.” The government redacted the rest of the email, but when we received this document we concluded that these agencies used license plate readers to collect information about law-abiding citizens attending gun shows. An automatic license plate reader cannot distinguish between people transporting illegal guns and those transporting legal guns, or no guns at all; it only documents the presence of any car driving to the event. Mere attendance at a gun show, it appeared, would have been enough to have one’s presence noted in a DEA database.

Responding to inquiries about the document, the DEA said that the monitoring of gun shows was merely a proposal and was never implemented.

Given the timing, location, and target — 2009, Arizona, and legal permanent residents, or Green Card holders — this consideration intersects interestingly with Fast and Furious.

But don’t worry, DEA says, this was just a consideration, tracking the movements of legal gun show attendees didn’t really happen.

All that said, I couldn’t help but remember that among the more obvious intelligence agencies the President’s Review Group into the NSA consulted in 2013 was ATF, which suggests that ATF is using at least some of the nifty toys NSA is using. As I noted at the time, that may be quite explicable, in that Section 215 has been used to track explosives precursors (and probably has been used to track acetone and hydrogen peroxide — where are TATP precursors, fertilizer, and maybe even pressure cookers).

But the fact that ATF is considering tapping into other agencies dragnets does raise further questions for me about why the PRG would need to consult with ATF.

Double Duty Dragnets

A few weeks back, I emphasized that the dragnet the government admitted to using in the Shantia Hassanshahi case (and issued a narrow claim to have shut down) was a drug database. That is, a dragnet purportedly created to track drug trafficking had been used to police sanctions.

Yesterday, the WSJ broke the story revealed by documents liberated by an ACLU FOIA. One point made in both hasn’t received enough emphasis. A 2009 document revealed that asset forfeiture was one of the primary goals of the program.

The Pilot National LPR Initiative has received enormous support from all several government and law enforcement entities and multiple request have been made to connect LPR devices from state and local law enforcement. In anticipation of the Pilot National LPR Initiative being utilized by all of DEA as well as Federal, State, and Local law enforcement throughout the United States, we must insure we can collect, manage, and maintain to the highest standards all data from the system as well as every other aspect of the LPR system. DEA has designed this program to assist with locating, identifying, and seizing bulk currency, guns, and other illicit contraband moving along the southwest border and throughout the United States. With that said, we want to insure we can collect and manage all the data and IT responsibilities that will come with the work to insure the program meets its goals, of which asset forfeiture is primary.

Funny. This passage doesn’t mention drugs at all. On the contrary, this is about seizing things of value — not drugs — so the law enforcement agency can profit.

 

The Government’s Database Arbitrage

I have long believed that the government put Iran on its list of approved target countries under the Section 215 dragnet not to use for counterterrorism purposes (the terror Iran seems to have sponsored of late is largely US generated), but instead to support sanctions.

Yesterday, the government claimed it has been using a drug trafficking database (one described differently than Hemisphere) to support sanctions on Iran.

At least that’s the implication of the declaration unsealed in the Shantia Hassanshahi case submitted in response to the judge’s order for more information on how it had identified the defendant.

This database [redacted] consisted of telecommunications metadata obtained from United States telecommunications service providers pursuant to administrative subpoenas served upon the service providers under the provisions of 21 U.S.C. § 876. This metadata related to international telephone calls originating in the United States and calling [redacted] designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities. This metadata consisted exclusively of the initiating telephone number; the receiving telephone number; the date, time, and duration of the call; and the method by which the call was billed. No subscriber information or other personal identifying information was included in this database. No communication content was included in this database.

In other words it’s just like the Section 215 phone dragnet (and different in a few ways from Hemisphere, the drug-related database collecting US calls), but collected under 21 USC 876, the drug war’s version of Section 215 tangible things provision, rather than Section 215. And they used it to go after sanctions violators, not drug traffickers.

The declaration goes on to say that this database got shut down — at least, shut down under this authority — in September 2013.

Use of the [redacted] database [redacted] that returned the 818 number was suspended in September 2013.1 This database [redacted] is no longer being queried for investigatory purposes, and information is no longer being collected in bulk pursuant to 21 U.S.C. § 876.

1 [5+ lines redacted]

The NYT broke the story of Hemisphere on September 1, 2013, so the month this thing was shut down. September 2013 is also, conveniently enough, the month Hassanshahi was arrested.

But of course, the declaration doesn’t even say it was shut down. There’s the redacted footnote, saying who knows what about the suspension. And the declaration only says this stuff isn’t collected in bulk under 21 USC 876, not that it’s not being conducted in bulk.

Maybe the government has finally moved its Iran sanction phone dragnet under Treasury sanctions authorities, where it should be?

Unions Even Conservatives Can Love

You know how conservatives (and education reform Democrats like Rahm and Obama and Cuomo) claim that they need to break up teacher’s unions because they hurt children of color because they impede efforts to give them a better education?

You never see anyone make the same argument, that cops unions hurt children of color because they ensure that cops who shoot children never get punished for it.

Funny how shooting 12-year olds bearing toys is considered less damaging to children of color than working in an underfunded school.

And cops unions’ role in the treatment of brown boys as presumptively criminal goes beyond just the shootings.

Cops unions lobbied to defeat bipartisan interest in demilitarizing cops.

According to Pasco, FOP members reached out to “maybe 80 percent of senators and half the House.” Since militarization was at the greatest risk in the Democratic Senate, the disparity made sense. As McMorris-Santoro reported, the departing Senate’s blockade on Republican amendments made it impossible for Paul to attach anything to a passable bill. And the clock’s basically run out for reform. A new Congress is coming in, but the FOP doesn’t see it as particularly likely to dismantle 1033.

And the Saint Louis Police Officers Association is now attacking 5 Rams players who entered the field yesterday with their hands raised in Stop Don’t Shoot symbolism.

“The SLPOA is calling for the players involved to be disciplined and for the Rams and the NFL to deliver a very public apology. Roorda said he planned to speak to the NFL and the Rams to voice his organization’s displeasure tomorrow. He also plans to reach out to other police organizations in St. Louis and around the country to enlist their input on what the appropriate response from law enforcement should be. Roorda warned, “I know that there are those that will say that these players are simply exercising their First Amendment rights. Well I’ve got news for people who think that way, cops have first amendment rights too, and we plan to exercise ours. I’d remind the NFL and their players that it is not the violent thugs burning down buildings that buy their advertiser’s products. It’s cops and the good people of St. Louis and other NFL towns that do. Somebody needs to throw a flag on this play. If it’s not the NFL and the Rams, then it’ll be cops and their supporters.”

As Deadspin notes, SLPOA spokesperson Jeff Roorda has a history of submitting false statements to protect himself and other cops.

I am in no way doubting the importance of police unions. All public sector workers are under attack these days, and while cops are often spared the brunt of those attacks (and exempted from anti-union laws), they need to have representation to defend their interests. I absolutely support that.

But I am cognizant of how critical a cog cops unions increasingly play — and how perfectly this language of “cops against the thugs” captures — in what defense attorney Joseph Margulies describes as the toxic ideology behind our policing.

Policymakers who profess an interest in criminal justice reform have thus far declined to re-examine the ideological foundation on which the current system was built. They have not questioned, in other words, the essential disposition to view the great majority of offenders as “them”—marauders who must be separated from “us” by any means necessary and for as long as possible. They show no awareness that the entire system was built on a foundation that unleashed the police and directed them to divide, rather than restrained the police and enjoined them to unite. Like any dominant ideology, this foundation operates unseen and unquestioned.

Now that reform is finally in the air, we must acknowledge that the American criminal justice system is flawed at its ideological core, a flaw that no amount of tinkering will fix. The shooting of Michael Brown, like the shooting of so many unarmed African-American men, was the predictable product of the same punitive turn in American life that produced the misguided War on Drugs, the dangerous militarization of local police, and the shame of mass incarceration. Until policymakers are willing to revisit the destructive and divisive ideology of “us” and “them,” and all that it implies, from police practice to sentencing to prison conditions, meaningful reform is impossible.

And the next grand jury will come to the same conclusion as this one.

At a time when so many other working people’s civil society organizations are being attacked, this one remains, intact, a key part of the ideology that subjects the poor rather than protects them. And as income inequality grows, this function of police unions will grow increasingly valuable to the powers that be.

The Masked US Marshals Who Nabbed Chapo Guzmán

In the middle of a story about a masked US Marshal who was injured in an operation against the cartels in Mexico in July, Devlin Barrett reveals what was obvious, but never confirmed, at the time. US Marshals (and other US personnel) were involved in the operation that nabbed Chapo Guzmán.

The Marshals Service operations in Mexico are carried out by a small group sent for short, specific missions. The goal is to help Mexico find and capture high-value cartel targets.

One operation yielded a great success: The capture of cartel boss Joaquin Guzman Loera, known as “ El Chapo, ” earlier this year. It is unclear whether U.S. Marshals personnel were disguised as Mexican military men on the day he was caught.

Sometimes the Marshals Service targets a person Mexico would like to apprehend but who isn’t wanted by U.S. authorities, the people familiar with the work said.

Marshals personnel on the ground dress in local military garb to avoid standing out and are given weapons to defend themselves.

The reason I was pretty certain at the time Americans were involved was because all of the “Mexican Marines” involved in the operation — at least the ones that showed up in pictures — were fully masked, so fully that they likely hid light hair as often as faces that might get people targeted by the cartels.

Barrett also makes clear that the toys the Marshals are using in the US under Pen Register authority are also being deployed when they work under cover in Mexico.

The Marshals Service works closely with the Mexican Marines because the U.S. agency has expertise at finding fugitives, in part through technology that detects cellphone signals and other digital signatures. That includes airplane flights operated by the agency carrying sophisticated devices that mimic cellphone towers, as reported last week by The Wall Street Journal. That technology works better with a ground presence.

[snip]

The people familiar with the matter described the Marshals Service as a police agency affected by mission creep. More than five years ago, the Service flew small planes along the border to detect cell signals and locate suspects inside Mexico. About four years ago the flights crossed deep into Mexican airspace, the people said.

They added that, more recently, some flights have been conducted in Guatemala.

I would bet that the tech deployed against Chapo was even niftier than what the Marshals use here. That would allow them to test nifty new technologies against the most hardened targets, and do so without any legal niceties required, before they start conniving judges to authorize the same technologies against easier targets here. So if we look closely at the Chapo operation, we might learned what exotic new technologies are only beginning to be used here in the US.

FBI Will Now Videotape In Custody Interrogations

[Significant Update Below]

My hometown paper, the Arizona Republic, broke some critically important news a few minutes ago. The story by Dennis Wagner, a superb reporter at the Republic for a very long time, tells of a monumental shift in the policy of DOJ agencies in relation to interrogations and confessions of those in custody.

There was no news release or press conference to announce the radical shift. But a DOJ memorandum —obtained by The Arizona Republic — spells out the changes to begin July 11.

“This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA) the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody,” says the memo to all federal prosecutors and criminal chiefs from James M. Cole, deputy attorney general.

“This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” such as in the questioning of witnesses.

This has been a long time coming and is notable in that it covers not just the FBI, but DEA, ATF and US Marshals. Calling it a monumental shift may be, in fact, a bit of an understatement. In the course of a series of false confession cases in the 90’s, attempts to get this instated as policy in the District of Arizona were fought by the DOJ tooth and nail. As other local agencies saw the usefulness of audio and/or video taping, DOJ authorities fought the notion like wounded and cornered dogs. That was not just their position in the 90’s, it has always been thus:

Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they’ve been prohibited by policy from making audio and video records of statements by criminal suspects without special approval.

Now, after more than a century, the U.S. Department of Justice has quietly reversed that directive by issuing orders May 12 that video recording is presumptively required for interrogations of suspects in custody, with some exceptions.

What has historically occurred is an agent (usually in pairs) did interviews and then recounted what occurred in what is called a “302” report based on their memories, recollections and handwritten notes (which were then usually destroyed). This created the opportunity not just for inaccuracy, but outright fabrication by overly aggressive agents. Many defendants have been wrongfully convicted, and some who were guilty got off because competent defense attorneys made fools of agents, and their bogus process, in court.

In short, presumptive taping is smart for both sides, and absolutely in the interests of justice. It still remains inexplicable why the DOJ maintained this intransigence so long when every competent police procedures expert in the world has been saying for decades that taping should be the presumption.

Now it should be noted that the policy will only apply to “in custody” interrogations and not ones where there has been no formal arrest which is, of course, a gaping hole considering how DOJ agents blithely work suspects over under the ruse they are not yet in custody. There will also clearly be an exigent circumstances/public safety exception which are also more and more frequently abused by DOJ (See: here, here and here for example).

So, we will have to wait to see the formal written guidance, and how it is stated in the relevant operation manuals for agents and US Attorneys, to get a full bead on the scope of change. And, obviously, see how the written policies are implemented, and what exceptions are claimed, in the field.

But the shift in interrogation policy today is monumental and is a VERY good and positive step. Today is a day Eric Holder should be proud of, and it was far too long in arriving.

UPDATE: When I first posted this I did not see the actual memo attached to Dennis Wagner’s story in the Arizona Republic; since that time I have been sent the actual memo by another source, and it is also available as a link in the Republic story that broke this news. Here are a couple of critical points out of the actual memo dated May 12, 2014:

The policy establishes a presumption in favor o f electronically recording custodial interviews, with certain exceptions, and encourages agents and prosecutors to consider taping outside of custodial interrogations. The policy will go into effect on Friday, July 11, 2014.

By my information, the gap in implementation is because DOJ wanted to do some top down discussion and orientation on the new policy, which makes some sense given the quantum nature of this shift. My understanding is that this is already ongoing, so DOJ seems to be serious about implementation.

But, more important is the news about non-custodial situations. That was a huge question left unanswered initially, as I indicated in the original part of this post. That agents and attendant prosecutors will be encouraged to record these instances as well is, well, encouraging!

The exceptions, which are outlined is Section II of the memo are pretty much exactly as I indicated should be expected above.

Notable in the Presumptions contained in Section I of the memo is that the rule applies to ALL federal crimes. No exceptions, even for terrorism. Also, the recording may be either overt or covert, which is not different from that which I have seen in many other agencies that have long recorded interrogations. Section III specifically excludes extraterritorial situations from the rule. Frankly, I am not sure why that is necessary, the ability to record is pretty ubiquitous these days, extraterritorial should be no problem for presumptive recording.

Those are the highlights of the memo. It is short and worth a read on your own.

NSA Collects All Phone Calls from One of World’s Most Secretive Tax Havens, But Doesn’t Track That

In its report on how the NSA collects every cell phone conversation that takes place in the Bahamas, The Intercept focuses on the use of such intercepts for drug investigations (indeed, one of the other countries targeted in the MYSTIC program is Mexico, which clearly has a DEA angle).

But one memo indicates that SOMALGET data is covertly acquired under the auspices of “lawful intercepts” made through Drug Enforcement Administration “accesses”– legal wiretaps of foreign phone networks that the DEA requests as part of international law enforcement cooperation.

When U.S. drug agents need to tap a phone of a suspected drug kingpin in another country, they call up their counterparts and ask them set up an intercept. To facilitate those taps, many nations – including the Bahamas – have hired contractors who install and maintain so-called lawful intercept equipment on their telecommunications.

Perhaps the most telling part of the article, however, is that NSA/DEA don’t appear to be using this facility to track money launderers.

If the U.S. government wanted to make a case for surveillance in the Bahamas, it could point to the country’s status as a leading haven for tax cheats, corporate shell games, and a wide array of black-market traffickers. The State Department considers the Bahamas both a “major drug-transit country” and a “major money laundering country” (a designation it shares with more than 60 other nations, including the U.S.). According to the International Monetary Fund, as of 2011 the Bahamas was home to 271 banks and trust companies with active licenses. At the time, the Bahamian banks held $595 billion in U.S. assets.

They’re tracking pot, but not bothering to track the dollars that drive the pot.

So aside from the hubris of stealing off of the cell phone calls from Bahama, this is also a testament to the US’ misplaced priorities, its inability to understand how its coddling of tax havens serve to drive the drug trade.

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.

[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

El Chapo

Screen Shot 2014-02-22 at 5.21.44 PMToday, they announced the capture of Chapo Guzmán.

According to Mexico’s el Universal, Sinaloa Cartel boss Chapo Guzmán was captured by authorities at 6:40 AM (it’s unclear whether this is Mexico City or Mazatlán time, which are an hour and two behind ET, respectively; and the local Sinaloa press says the operation started at 3:30 AM).

The AP broke the story at 10:52 AM, sourcing to a US official. At around 11:00 (presumably, Mexico City time), Mexico’s Attorney General Jesús Murillo Karam announced the capture — he attributed the delay to taking time to confirm Guzmán’s identity.

And around that same time, President Enrique Peña Nieto tweeted out congratulations to Mexico’s security services for the capture.

As of right now, I’ve seen no comment from the White House on the capture, even though the DEA were said to be heavily involved.

There have been two pictures circulating relating to the arrest: a KSM-style picture of Guzmán at least partially undressed, and pictures taken in full daylight of him being transferred, fully dressed, to a helicopter by masked men wearing Mexican Navy uniforms.

I lay out these details because I have been wondering for some time why, alone among the world leaders spied on by the NSA, Peña Nieto never complained all that loudly. When Speigel first reported the spying, it suggested the US was trying to determine how seriously Peña Nieto — then still a candidate — meant his campaign promises to change the war on drugs. But according to Dana Priest, subsequent to the start of that spying, upon being presented with the range of our spying in Mexico, the President ended much of that “cooperation.”

The new administration has shifted priorities away from the U.S.-backed strategy of arresting kingpins, which sparked an unprecedented level of violence among the cartels, and toward an emphasis on prevention and keeping Mexico’s streets safe and calm, Mexican authorities said.

Some U.S. officials fear the coming of an unofficial truce with cartel leaders. The Mexicans see it otherwise. “The objective of fighting organized crime is not in conflict with achieving peace,” said Eduardo Medina Mora, Mexico’s ambassador to the United States.

[snip]

U.S. officials got their first inkling that the relationship might change just two weeks after Peña Nieto assumed office Dec. 1. At the U.S. ambassador’s request, the new president sent his top five security officials to an unusual meeting at the U.S. Embassy here. In a crowded conference room, the new attorney general and interior minister sat in silence, not knowing what to expect, next to the new leaders of the army, navy and Mexican intelligence agency.

In front of them at the Dec. 15 meeting were representatives from the U.S. Drug Enforcement Administration (DEA), the CIA, the FBI, the Office of the Director of National Intelligence and other U.S. agencies tasked with helping Mexico destroy the drug cartels that had besieged the country for the past decade.

The Mexicans remained stone-faced as they learned for the first time just how entwined the two countries had become during the battle against narco-traffickers, and how, in the process, the United States had been given near-complete entree to Mexico’s territory and the secrets of its citizens, according to several U.S. officials familiar with the meeting

Four months after that meeting, Peña Nieto involved his government in the information sharing process between the US and Mexico, and he reportedly kicked out Americans working in Mexican fusion centers.

Medina Mora, the Mexican ambassador, said in an interview that his nation considers U.S. help in the drug war “a centerpiece” of Mexico’s counternarcotics strategy. But the Mexican delegation in Washington also informed U.S. authorities that Americans will no longer be allowed to work inside any fusion center, including the one in Monterrey. The DEA agents and retired military contractors there will have to go.

Mind you, it’s clear that this change in strategy didn’t really come about — or if it has, the US has accelerated its own work without the Mexicans — as can be seen by the string of Guzmán associates who’ve been rolled up in recent weeks.

There were further hints of Mexico’s close cooperation when James Clapper, at a recent hearing, refused to elaborate in public session on an answer suggesting that Mexico was cooperating as closely as ever. And this response — in a background briefing in advance of President Obama’s trip to Toluca last week — makes it clear the Americans believe cooperation is still ongoing.

Q I was wondering, since we’re on the topic of messages, and you’ve already outlined the main topics of the summit, what sort of message is the President going to give the Mexican President Peña Nieto with the ongoing violence in Michoacán and whether or not they’re going to talk about new initiatives or somehow renewing the — or expanding the Merida initiative to combat drug traffickers down there. So in other words, what sort of deliverables can we expect from this summit? Thank you.

SENIOR ADMINISTRATION OFFICIAL: Thanks for that question. First of all, we have a very good and effective security relationship with Mexico and we have a for a number of years now, including with this administration. Certainly our shared security interests are going to be a part of the conversation. As President Obama made very clear in his initial meeting with President Peña Nieto, we stand by to help in any way we can and to cooperate as determined by the government of Mexico as it develops its security posture and deals with security concerns and judicial reform in Mexico.

You mentioned the Merida programs; those are continuing. And there’s a process in place between our two governments to develop priorities for cooperation. There’s a greater emphasis on the judicial cooperation now and finding ways to work together in that field. With respect to Michoacán, certainly we’re following closely what is happening there and stand by the government of Mexico as it confronts challenges there and elsewhere. [my emphasis]

And now Chapo is in custody, reportedly as a result of several weeks of cooperation between the DEA and Mexico’s Navy.

We shall see whether this time he stays in custody, and if so, in which country.

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