Recent national security leaks have focused on NSA mass surveillance aimed at stopping acts of terrorism. But law enforcement may be secretly using information from intelligence agencies to prosecute organized crime.
A special unit of the Drug Enforcement Administration (DEA) has allegedly gleaned information from National Security Agency (NSA) surveillance programs to prosecute drug traffickers and organized crime, in a possible demonstration of growing cooperation between normal law enforcement and the US national security establishment.
According to reporting by the Reuters news agency, the DEA's Special Operations Division (SOD) sanitizes classified information for use by prosecutors in the US judicial system. But investigators are told to cover up the SOD's footprint on cases through a technique called "parallel reconstruction." The technique fakes the origins of sensitive information, giving the impression that SOD tips come from a different source.
The practice has raised concern that defendants are being denied basic constitutional rights to review the evidence against them. Some civil libertarians are also worried that SOD activities demonstrate an expansion of the national security and intelligence agencies' involvement in the normal criminal justice system.
According to William C. Banks, law enforcement agencies such as the DEA are allowed to use evidence obtained through the NSA's PRISM surveillance program, so long as certain conditions are met. The practice is based on a lax interpretation of the US constitution's fourth amendment, which normally protects against unreasonable search and seizure.
"The lower courts and the special FISA court have held that so long as the purpose of the surveillance is to collect foreign intelligence, then the protections of the fourth amendment are relaxed, because the intelligence collection itself does not anticipate the kind of criminal prosecution that would trigger more rigorous fourth amendment scrutiny," Banks, director of the Institute for National Security and Counterterrorism at Syracuse University, told DW.
The fall of the wall
In the wake of the September 11, 2001 terrorist attacks, poor coordination between law enforcement and intelligence agencies came under intense public scrutiny. Prior to the attacks, a so-called wall had restricted law enforcement officials from accessing relevant information gathered by intelligence agencies for use in criminal prosecutions.
This "wall" was intended to prevent law enforcement officials from using FISA as a loophole around the fourth amendment in traditional criminal cases. But many law enforcement, intelligence, and elected officials blamed restricted information sharing for the failure to uncover the 9/11 plot.
In 2001, Congress passed the Patriot Act, which amended FISA to loosen the restrictions that had prevented greater cooperation between the law enforcement and intelligence communities. The attorney general at the time, John Ashcroft, filed new guidelines with the FISA court to implement the Patriot Act and promote information sharing. But the court rejected Ashcroft's proposal. It was the first time that the secretive judicial body had dismissed a government application in its history.
The government appealed, forcing the FISA Court of Review to convene for the first time. Ultimately, the Court of Review ruled in 2002 that the government's guidelines were indeed valid, striking down the "wall" for good and opening the door to greater cooperation among law enforcement and intelligence.
"The special FISA court had agreed that, so long as there was also an intelligence purpose to gathering the material, the fact that evidence of crime was collected as well did not stand in the way of using that information in criminal prosecutions," Banks said.
Growth of metadata
But in the decade since the September 11 attacks, the government's ability to collect telecommunications data has expanded, raising questions about the degree to which law enforcement can access this massive trove of information for criminal prosecutions.
While this surveillance is officially directed at non-US persons, metadata of people in the US can get incidentally picked up. The NSA has so-called minimization procedures, which call for data relating to US persons to be destroyed.
But according to national security law expert Laura Donohue, these minimization procedures allow the NSA to retain incidentally obtained information on criminal activity. Donohue is the director of Georgetown University's Center on National Security and the Law.
"The problem is that the minimization procedures include using any information about criminal activity they may uncover," Donohue told DW in an interview originally published on July 10.
"So now what it's become is an end run around the fourth amendment, where there is no warrant required to collect the information, to find criminal behavior and then to prosecute," she said.
Covering up the tracks
The NSA has openly acknowledged that it cooperates with law enforcement. But the agency has denied that law enforcement has access to it database of phone records, according to Reuters.
"This coordination frequently includes sanitizing classified information so that it can be passed to personnel at lower clearance levels in order to meet their operational requirements," the NSA wrote in a statement published by Reuters.
"If the Intelligence Community collects information pursuant to a valid foreign intelligence tasking that is recognized as being evidence of a crime, the intelligence community can disseminate that information to law enforcement, as appropriate."
According to the Reuters' report, sanitization includes covering up the origins of information obtained and used in criminal cases. Through parallel reconstruction, the involvement of a secretive unit such as the DEA's Special Operations Division is then hidden. The official purpose is to protect sources and methods.
"In many cases, such as the DEA program..., it's likely that the intelligence that was collected that led to the evidence of crime was collected by some other agency for intelligence gathering purposes and turned over to the DEA after the fact," Banks said.
Defense attorneys have expressed concern that this process of sanitization and parallel reconstruction denies their clients access to evidence which could help their cases. Banks said these attorneys need to start filing motions to have secretly obtained information turned over to them.
"What's got to happen here, it will be quickly known if it isn't already, that defense council needs to make these motions any time when it can conceivably be the case that that information is available," Banks said. "Then it's incumbent on the court to make the demand of the government and for the government to say whether or not there is such surveillance."