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At question are the practices of the DEA's Special Operations Division (SOD), which works with two dozen partner agencies, including the CIA, National Security Agency, Internal Revenue Service and Department of Homeland Security. The DEA unit reportedly has been passing NSA-furnished counterterrorism surveillance -- including wiretap information, tips and telephone records -- to other agencies, some of which are using it as part of criminal investigations unrelated to espionage, terrorism or nuclear proliferation.
The DEA is part of the Department of Justice, which this week launched a related investigation. "The department is looking into the issues raised by the story," said a department spokesman via email.
The information-sharing -- and obfuscation -- revelations also have lead to an outcry from civil rights and privacy experts, who said the practice likely violates Fourth Amendment protections against unreasonable search and seizure. "This is really bad. The surveillance state is closer than most of us think," said Bruce Schneier, chief security technology officer of BT, in a blog post.
Here are six related concerns:
1. Leaked NSA Operating Guidelines Grant Broad Latitude.
The information-sharing guidelines for the NSA's surveillance programs were first published in June, after being leaked by NSA whistleblower Edward Snowden.
In general, the guidelines require agency analysts to practice minimization techniques to ensure that they're not analyzing information about U.S. citizens. But the guidelines give them broad leeway to share "inadvertently" collected domestic communications. In addition, the NSA can retain -- for up to six months -- communications that don't contain "foreign intelligence information" but that are "reasonably believed to contain evidence of a crime that has been, is being, or is about to be committed," and allow them to share this information with law enforcement agencies, typically the FBI. At that point, the bureau could attempt to obtain a probable-cause warrant from a judge.
But some legal experts have said that this information-sharing arrangement violates the Constitution. "The NSA intercepts, whether they are mail covers, metadata or what have you, are in essence general warrants," Denver-based criminal defense attorney Harold Haddon told the San Francisco Chronicle. But using those warrants as part of a criminal investigation "is a bright-line Fourth Amendment violation."
2. Spooks Say Intelligence Can't Be Ordered Up.
U.S. intelligence officials have defended the sharing as involving information that NSA happens to discover, rather than seeks out on behalf of law enforcement agencies. "We can't task the collection of information for those purposes, and the Department of Justice can't ask us to collect evidence of that kind of a crime," Robert Litt, general counsel for the Office of the Director of National Intelligence, recently told an audience at the Brookings Institution, reported the San Francisco Chronicle.
But his detailing of the practice suggested that information is shared for many more types of crimes than might have been suggested at first. "If the intelligence agency uncovers evidence of any crime ranging from sexual abuse to [the Foreign Corrupt Practices Act], they tend to turn that information over to the Department of Justice," Litt said. "But the Department of Justice cannot task the intelligence community to do that."
3. Scope Creep: Welcome To The Surveillance State.
Privacy and civil rights groups have responded to the revelations over the DEA's SOD unit by asking what protections are in place to review whether that information sharing is appropriate or legal.
"Last month, I wrote about the potential for mass surveillance mission creep: the tendency for the vast NSA surveillance apparatus to be used for other, lesser, crimes," said Schneier, who joined the board of directors of privacy rights group Electronic Frontier Foundation in the wake of details about Prism and other NSA surveillance programs being made public. "My essay was theoretical, but it turns out to be already happening."
4. Lack Of Surveillance Oversight: Secrets Within Secrets.
Of course, intelligence programs are often justified as being a necessary evil, and their workings guarded from public scrutiny, lest the information help foreign intelligence agents avoid counterespionage efforts. But what happens when the fruits of a country's intelligence programs are directed at its own citizenry, and government agents then lie about how they obtained the information?
"I have never heard of anything like this at all," Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011, told Reuters. "It is one thing to create special rules for national security," she said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."
5. DEA Agents Told To Stay Quiet.
"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," said a DEA document obtained by Reuters. Accordingly, the document instructed agents to pursue "parallel construction," which involves working backward to justify the need for an investigation using other means. Or, in the parlance of the DEA document, agents are advised to use "normal investigative techniques to recreate the information provided by SOD."
According to numerous legal experts, using parallel construction might be legal for demonstrating probable cause; for example, to obtain a warrant. But not disclosing where the evidence was originally obtained might violate pretrial rules designed to ensure that defendants are granted access to all evidence that might be used against them in court -- and which might help them prove their innocence.
"The DEA is violating our fundamental right to a fair trial," said Ezekiel Edwards, director of the ACLU's criminal law reform project, in a statement. "When someone is accused of a crime, the Constitution guarantees the right to examine the government's evidence, including its sources, and confront the witnesses against them. Our due process rights are at risk when our federal government hides and distorts the sources of evidence used as the basis for arrests and prosecutions."
6. NSA Programs Still On Shaky Legal Grounds.
The DEA's use and distribution of evidence gleaned from intelligence dragnets -- and then disguising its origins -- has legal experts further up in arms precisely because the legality of the dragnets themselves remains an open question. Although White House officials have said that the programs fully comply with the Patriot Act, as well as the Foreign Intelligence Surveillance Act (FISA), which is overseen by the Foreign Intelligence Surveillance Court (FISC), legislators aren't so sure.
"I am extremely disturbed by what appears to be an overbroad interpretation of the Act," said Rep. James Sensenbrenner (R-Wis.), the author of the Patriot Act, in a letter he sent to Attorney General Eric Holder in June. Holder, of course, leads the Department of Justice, which is now investigating the DEA's use of that intelligence. According to documents leaked by Snowden, Holder also signed a secret 2009 memorandum laying out the minimization procedures that NSA analysts needed to use to help them avoid spying on American citizens.