Drug Warriors: DEA Trains Agents to Commit Perjury
Well, really, it's not like people didn't already "know". That is to say, it's been pretty clear for a while that something shady was going on. but Reuters is in the process of exposing the tactic, called "parallel construction".
We can now expect a tsunami of appeals to wash through our court system.
This has been going on for decades; David Ingram and John Shiffman, reporting for Reuters, assert DEA officials speaking anonymously told them, "The Special Operations Division has used it virtually every day since the 1990s".
Despite those claims, the DEA points to a 2001 trial as their legal authority:
There is a lot of tinfoil on both sides of the Drug War, but suddenly, one side's tinfoil seems a lot more substantial. Oddly, though, of all the notions that the Drug War set the stage for TWAT, the idea of being convicted according to secret information a defendant is not allowed to defend against wasn't high on the list.
How do we get ourselves into these stupid situations?
Notes:
Ingram, David and John Shiffman. "U.S. defense lawyers to seek access to DEA hidden intelligence evidence". Reuters. August 8, 2013. Reuters.com. August 12, 2013. http://www.reuters.com/article/2013/08/08/us-dea-irs-idUSBRE9761AZ20130808
Well, really, it's not like people didn't already "know". That is to say, it's been pretty clear for a while that something shady was going on. but Reuters is in the process of exposing the tactic, called "parallel construction".
We can now expect a tsunami of appeals to wash through our court system.
Criminal defense lawyers are challenging a U.S. government practice of hiding the tips that led to some drug investigations, information that the lawyers say is essential to fair trials in U.S. courts.
The practice of creating an alternate investigative trail to hide how a case began - what federal agents call "parallel construction" - has never been thoroughly tested in court, lawyers and law professors said in interviews this week.
Internal training documents reported by Reuters this week instruct agents not to reveal information they get from a unit of the U.S. Drug Enforcement Administration, but instead to recreate the same information by other means. A similar set of instructions was included in an IRS manual in 2005 and 2006, Reuters reported.
The DEA unit, known as the Special Operations Division, or SOD, receives intelligence from intercepts, wiretaps, informants and phone records, and funnels tips to other law enforcement agencies, the documents said. Some but not all of the information is classified.
In interviews, at least a dozen current or former agents said they used "parallel construction," often by pretending that an investigation began with what appeared to be a routine traffic stop, when the true origin was actually a tip from SOD.
Defense lawyers said that by hiding the existence of the information, the government is violating a defendant's constitutional right to view potentially exculpatory evidence that suggests witness bias, entrapment or innocence.
"It certainly can't be that the agents can make up a 'parallel construction,' a made-up tale, in court documents, testimony before the grand jury or a judge, without disclosure to a court," said Jim Wyda, the federal public defender in Maryland, in an email.
"This is going to result in a lot of litigation, for a long time."
(Ingram and Shiffman)
The practice of creating an alternate investigative trail to hide how a case began - what federal agents call "parallel construction" - has never been thoroughly tested in court, lawyers and law professors said in interviews this week.
Internal training documents reported by Reuters this week instruct agents not to reveal information they get from a unit of the U.S. Drug Enforcement Administration, but instead to recreate the same information by other means. A similar set of instructions was included in an IRS manual in 2005 and 2006, Reuters reported.
The DEA unit, known as the Special Operations Division, or SOD, receives intelligence from intercepts, wiretaps, informants and phone records, and funnels tips to other law enforcement agencies, the documents said. Some but not all of the information is classified.
In interviews, at least a dozen current or former agents said they used "parallel construction," often by pretending that an investigation began with what appeared to be a routine traffic stop, when the true origin was actually a tip from SOD.
Defense lawyers said that by hiding the existence of the information, the government is violating a defendant's constitutional right to view potentially exculpatory evidence that suggests witness bias, entrapment or innocence.
"It certainly can't be that the agents can make up a 'parallel construction,' a made-up tale, in court documents, testimony before the grand jury or a judge, without disclosure to a court," said Jim Wyda, the federal public defender in Maryland, in an email.
"This is going to result in a lot of litigation, for a long time."
(Ingram and Shiffman)
This has been going on for decades; David Ingram and John Shiffman, reporting for Reuters, assert DEA officials speaking anonymously told them, "The Special Operations Division has used it virtually every day since the 1990s".
Despite those claims, the DEA points to a 2001 trial as their legal authority:
When asked for the legal authority by which they shielded potential evidence from the defense, DEA officials cited the 2001 trial of Rafael Mejia, a Costa Rican citizen convicted in federal court in Washington.
The DEA declined to say whether parallel construction was used in the case, but records show that at trial neither Mejia, nor his lawyer, nor even the trial prosecutor knew the investigation had involved classified information.
They learned this only four years later as Mejia appealed his conviction, and a federal appeals court sent a notice that surprised lawyers on both sides. The court informed the lawyers that just days before the trial had begun in 2001, someone from a Justice Department narcotics office secretly approached the judge in his chambers to present him with classified evidence. The judge then made a secret ruling that Mejia was not entitled to this evidence because it was neither helpful nor relevant.
Such so-called ex parte decisions by judges on classified pretrial discovery issues are not unusual in terrorism cases, but prosecutors routinely file a related public notice to the defense about the existence of the secret filings. That did not happen in Mejia's case.
The notice the appeals court sent the Mejia trial lawyers asked them each to address whether the information would have been relevant at trial. The court asked the lawyers to do this without disclosing what the classified information actually was. Defense lawyer H. Heather Shaner said the request felt Kafka-esque.
"I didn't know about the information at trial and on appeal I couldn't access it," she recalled. "It made me irrelevant as a lawyer."
The trial prosecutor, Robert Feitel, said he was as surprised as anyone to learn about the secret evidence. Now a defense lawyer in large drug cases, Feitel said he routinely tries to frame his requests for government evidence to include potential classified information whenever he believes intelligence intercepts or foreign wiretaps might have been used.
The DEA declined to say whether parallel construction was used in the case, but records show that at trial neither Mejia, nor his lawyer, nor even the trial prosecutor knew the investigation had involved classified information.
They learned this only four years later as Mejia appealed his conviction, and a federal appeals court sent a notice that surprised lawyers on both sides. The court informed the lawyers that just days before the trial had begun in 2001, someone from a Justice Department narcotics office secretly approached the judge in his chambers to present him with classified evidence. The judge then made a secret ruling that Mejia was not entitled to this evidence because it was neither helpful nor relevant.
Such so-called ex parte decisions by judges on classified pretrial discovery issues are not unusual in terrorism cases, but prosecutors routinely file a related public notice to the defense about the existence of the secret filings. That did not happen in Mejia's case.
The notice the appeals court sent the Mejia trial lawyers asked them each to address whether the information would have been relevant at trial. The court asked the lawyers to do this without disclosing what the classified information actually was. Defense lawyer H. Heather Shaner said the request felt Kafka-esque.
"I didn't know about the information at trial and on appeal I couldn't access it," she recalled. "It made me irrelevant as a lawyer."
The trial prosecutor, Robert Feitel, said he was as surprised as anyone to learn about the secret evidence. Now a defense lawyer in large drug cases, Feitel said he routinely tries to frame his requests for government evidence to include potential classified information whenever he believes intelligence intercepts or foreign wiretaps might have been used.
There is a lot of tinfoil on both sides of the Drug War, but suddenly, one side's tinfoil seems a lot more substantial. Oddly, though, of all the notions that the Drug War set the stage for TWAT, the idea of being convicted according to secret information a defendant is not allowed to defend against wasn't high on the list.
How do we get ourselves into these stupid situations?
"Red, White, and Blue, gaze in your looking glass; you're not a child anymore. Red, White, and Blue, the future is all but past, so lift up your heart, make a new start, and lead us away from here."
____________________—Styx
Notes:
Ingram, David and John Shiffman. "U.S. defense lawyers to seek access to DEA hidden intelligence evidence". Reuters. August 8, 2013. Reuters.com. August 12, 2013. http://www.reuters.com/article/2013/08/08/us-dea-irs-idUSBRE9761AZ20130808