Dark side: Secret origins of evidence in US criminal cases
Similarly, Arthur Rizer, a former federal prosecutor who worked at the SOD from 2010 to 2013, described the SOD to Human Rights Watch as “like a clearinghouse for information for very large prosecutions.”
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By contrast, Rizer portrayed the “Dark Side” nickname in his interview with Human Rights Watch as “a tongue-in-cheek kind of thing. When we all left, we got little keychains of Darth Vader.”[90] He added that while “there’s nothing official called the Dark Side,” the entity or activity “is the intersection of the criminal justice system and the intelligence community.”[91] (According to Rizer, the SOD also contains a component that is unofficially known as the “Light Side.”)[92] Although he declined to provide details about the Dark Side, he emphasized that “[i]t’s not as sinister as people think it is,” and that “[t]he atmosphere that I saw was painful in ensuring that no laws were violated.”[93]
During the same interview, however, Rizer emphasized that the public should think about just how extensive US surveillance powers are. “The powerful aspect of the SOD,” he said, “is that they do everything legally—but the laws are so fucking powerful.”[94] In other words, the problem is what the laws permit. “The public outcry should really be about the expansive powers of the federal government,” Rizer concluded.[95]
b. The SOD’s role in parallel construction
Sources consistently describe the SOD as distributing tips to other agencies, subject to a mutual understanding that the tips will not be revealed in court proceedings. Typically, the division does not disclose the original source of its knowledge, even to other law enforcement officers or prosecutors. Rizer explained the government’s perspective after obtaining and deciding to share information that may be useful in a US criminal investigation: “A lot of times, you don’t want the bad guys to know how you got [the] information…. You want to give [law enforcement] just enough” to start an investigation, but “not enough to know where everything came from.”[96]
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Arthur Rizer, the former federal prosecutor who worked at the SOD from 2010 to 2013, suggested in his interview with Human Rights Watch that CIPA “is a very misunderstood, incredibly powerful statute” and pointed out that it allows prosecutors to “sanitize discovery” of classified information.[110] The implications of Rizer’s statement for parallel construction currently remain unclear; however, CIPA features prominently in several places in the DEA training documents obtained by journalist Ciaramella. For example, one of these documents states that CIPA (and FISA) “provide a means lawfully to limit exposure of sensitive information during public trials” and that “the concept known as ‘parallel construction’ can be used to shield classified information that might otherwise be discoverable in a trial from the discovery process at trial by using the [CIPA] and a ‘Taint Review Team.’”[111]
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In an interview with Human Rights Watch, Rizer stated that a tip to law enforcement for parallel-construction purposes might be “as simple as, ‘Look for a white car at this intersection at this time.’”[120]
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Rizer and the other former federal prosecutor interviewed by Human Rights Watch confirmed that the issuance to local law enforcement of “Be On the Lookout Orders,” or BOLOs, are one means by which agencies might prompt such traffic stops in order to avoid disclosing the fact that information was obtained from certain sources.[135] Examples of BOLOs appear in emails disclosed to WikiLeaks that belonged to Stratfor, a private Texas-based intelligence firm. After describing vehicles that the sender of the BOLO believes may be involved in narcotics trafficking or other unlawful activities, several of these documents explicitly instruct law enforcement to “[d]evelop your own probable cause for conducting a traffic stop.”[136] (It is unknown whether any of the specific BOLOs located by Human Rights Watch were issued based on intelligence activities, although the instruction to “develop your own probable cause” indicates that the government did not initially plan to disclose the original source of its information to the defendant.)
Overall, Rizer suggested that when law enforcement finds—for example—20 kilograms of drugs in a vehicle during a stop, “The chances of it being a random traffic stop … [are] unlikely in my opinion.”[137]
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By contrast, Reuters has quoted an anonymous senior DEA official as saying, “Parallel construction is a law enforcement technique we use every day.”[146] Rizer told Human Rights Watch that when he was part of the SOD, there were “thousands of sealed indictments around the country involving the kind of work the SOD was doing” and that the use of SOD tips for US prosecutions “was a daily affair.”[147] He added that this “tip and lead” practice was done “across DOJ,” and not only at the SOD.[148] Joseph O’Keefe, a former special-agent-in-charge of the SOD, said during the 2015 DEA panel, “I think every day there’s cases that are affected by products that come out to the field through SOD from the Fusion Center that multi-jurisdiction operations go on” (although he did not specify the nature of these products or the role of the fusion center).[149]
