The war on civil liberties continues to intensify. Reuters revealed Monday that the Drug Enforcement Administration has been receiving data from the National Security Agency’s spy program. That the NSA is giving the DEA data from it’s massive data collection program is bad enough. However, what has truly put the story over the top is the revelation that the DEA has an entire department covering up how the government acquires information used in investigations.

When this data point is added to to numerous stories this past year of overreach by investigators, some of which have been detailed here at R Street, it raises a question: Why is the government attacking the justice system itself?

The real revelation in the story by John Shiffman and Kristina Cooke is the existence of the DEA’s Special Operations Division, which is charged with some very disturbing responsibilities:

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.

“I have never heard of anything like this at all,” said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

“It is one thing to create special rules for national security,” Gertner said. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”

Shiffman and Cooke go further in detailing the troubling truths of this program. A former DEA agent labeled the program as the evidentiary equivalent of money laundering, and a prosecutor in Florida, when he tried to figure out where the evidence for a case came from and was told it was the SOD, said he was “pissed.”:

“Lying about where the information came from is a bad start if you’re trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court.” The prosecutor never filed charges in the case because he lost confidence in the investigation, he said.

By covering up how police gain their evidence, the DEA is effectively short-circuiting the legal system. How many cases have been successfully challenged because a police officer didn’t follow procedure and thus violated someone’s rights? How are defendants supposed to find out with these practices in place now?

What’s alarming is that this is only a part of a larger, systemic problem. The Securities and Exchange Commission is already pushing for a waiver to allow it to grab information in bulk from cloud storage providers, without applying for a warrant first. This would be an end-round the normal discovery process in the justice system, whereby the defendant would sort out relevant information from irrelevant information, such as personal and family data from corporate data.

Another example of government abuse has been the rampant use of the “state secrets privilege,” which the government has used to shut down cases before they even begin. Last year, legislation was introduced to curb the excessive use of the privilege, but it died in committee.

In all these cases, we’re seeing the justice system bypassed or short-circuited in the interest of government power, not protected for the rights of the people. This is damaging the most important and vital means to protect our rights and liberties. But it throws our entire court system upside down as well. If we’re violating court procedures rules left and right, how will we determine what is just? What is true?

This is a dangerous road to be walking down. Now we’re not just violating Americans’ privacy. Now we’re upending the law.

Featured Publications