Category Archives: Public Policy

Activism, First Amendment, Privacy & Security, Public Policy, Uncategorized

Documents Confirm: FBI’s Joint Terrorism Task Force Targets Peaceful Activists for Harassment, Political Surveillance

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The American Civil Liberties Union of Colorado released documents today that it says confirm that the FBI’s Joint Terrorism Task Force (JTTF) in Denver is targeting peaceful political activists for harassment and building files on constitutionally-protected political activities and associations that have nothing to do with terrorism or other criminal activity.

The documents are the first FBI responses to a formal request that the Colorado ACLU filed under the Freedom of Information Act (FOIA) on behalf of 26 organizations and 10 individuals last December. At the time, the Colorado ACLU presented evidence that the JTTF was collecting information on peaceful advocacy groups whose issues ranged from animal rights, protection of the environment, labor rights, military policy, social and economic justice in Latin America, and the treatment of Native Americans. Six additional ACLU affiliates around the country filed similar requests in December, and ten additional ACLUs filed FOIA requests today.

“These documents confirm that the FBI’s anti-terrorism unit is targeting nonviolent activists and unjustifiably treating constitutionally-protected dissent as though it were potential terrorism,” said Mark Silverstein, ACLU Legal Director. “They illustrate that the FBI is pursuing misplaced priorities that waste taxpayers’ money and pose a threat to freedom of expression and association. People will be reluctant to sign a petition or join a peaceful demonstration when they know that their names might wind up in an FBI file on ‘domestic terrorism.’”

The documents reveal that the FBI is particularly interested in Food Not Bombs, which opposes the government’s prioritization of war and military programs over social programs. Twice a week in Denver for the last six years, Food Not Bombs has been providing free vegetarian meals in a picnic setting in public parks to anyone who is hungry. Autonomous chapters of Food Not Bombs carry out in similar activities in Boulder, Fort Collins and Durango, as well as numerous cities throughout the country.

One FBI report, written in December 2004, focused specifically on Sarah Bardwell, a young Denver activist who worked for the American Friends Service Committee for several years in the organization’s Youth and Militarism Program and who is also active with Food Not Bombs. The FBI report notes that Bardwell was listed as a “point of contact” for the organizers of an antiwar protest in downtown Denver in March, 2004. It further notes that her address is “associated with” Food Not Bombs and Derailer Bicycle Collective. (Volunteers at Derailer fix up old bikes, donate bicycles to the homeless, and teach people to work on their own bikes.) The author of the FBI report also states that Derailer hosted a meeting place during the Columbus Day protests in Denver two years earlier.

“This report on Sarah Bardwell collects information about her peaceful political activities and her constitutionally-protected associations,” Silverstein said. “It contains nothing that suggests that she is connected with terrorism or any other criminal activity.”

The FBI documents provide new information about a controversial JTTF operation that targeted political activists for aggressive and intimidating questioning in Colorado and other states in the summer of 2004. A three-page report discusses the events of July 22, 2004, when two teams of JTTF agents, accompanied by Denver police officers in SWAT gear, appeared at two Denver residences on Lipan Street that are home to a number of young political activists, including Bardwell. Bardwell explained at the time that the JTTF agents demanded to know if she and her housemates were planning to commit crimes at the upcoming Republican and Democratic conventions and whether they knew anyone who was planning such crimes. They also threatened that failing to provide information to the FBI was a criminal offense. Critics charged that the FBI was actively attempting to intimidate dissenters rather than conducting a legitimate investigation of reasonably suspected criminal activity.

The FBI report explains that the Denver JTTF received several “leads” and was asked to conduct “pretext interviews” about plans for the political conventions. The first two “leads” the JTTF pursued were the two houses on Lipan Street. The FBI report states that no information about criminal activity was obtained. The report then states that the JTTF agents decided not to follow up on another lead, regarding a radical bookstore, because, as the report stated, “the purpose of the interviews was served by the contacts made at the two residences.”

“These accounts of the JTTF’s visits to the Lipan Street homes confirm that the FBI was more interested in intimidation than in trying to gather information,” Silverstein said. “The JTTF show of force, complete with SWAT teams, was an abuse of power apparently intended to deter persons who might be considering demonstrating at the political conventions.”

A similar three-page report reveals that the JTTF also intended to question Scott Silber, a labor consultant who had recently assisted janitors in a campaign that secured health insurance in 40 employer agreements. Silber reports receiving several phone calls from an FBI agent who demonstrated extensive knowledge of Silber’s recent addresses but who would not explain his interest in questioning Silber.

The FBI documents released today supplement documents released earlier by the Colorado ACLU, many obtained in connection with litigation over the Denver Police Department’s “Spy Files,” which also document the JTTF’s collection of political surveillance information. Those documents are available here.

Civil Liberties, First Amendment, Privacy & Security, Public Policy

What’s the Government Doing Targeting Civil Rights Leaders?

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By Laura W. Murphy, Director, ACLU Washington Legislative Office

JULY 9, 2014 | 5:11 PM

 

The NSA and FBI are targeting prominent American Muslims, including civil rights activists, academics, and a former government official, we learned in a troubling report released last night.

Their emails have been stored, their movements have been monitored, and their relationships have been tracked. No detail has proved too remote for the prying eyes of the NSA and FBI.

None have been charged with any criminal or terrorist activity, and because of the excessive secrecy of the government’s surveillance laws, the government doesn’t have to explain itself. Anyone who reads the report can’t help but worry that the government is engaging in highly invasive and personal surveillance based on activism, religion, and political belief.

The story raises profound questions about the surveillance authorities of the government, including its ability to selectively target a political, ethnic, or religious group. In this case, it’s American Muslims.  But we already know that the FBI is engaging in a much more expansive racial and ethnic mapping program that should worry us all.

We’ve been here before. In the 1960s and 70s, civil rights organizations, activists, and minority communities were surveilled and monitored simply because their views differed from the government’s. Constitutionally protected activity had become a shibboleth. What’s going on today is reminiscent of that time.

Innocent American Muslims and South Asian Americans have been repeatedly scrutinized and stigmatized ever since the September 11, 2001 terrorist attack. And since that time, racial profiling at the borders, the airports and in the criminal justice system has gotten worse for Latinos, Asians, African Americans, and other people of color.

The Council for American Islamic Relations, for example, is the largest Muslim civil rights organization in the United States. Why is Nihad Awad, their executive director who was profiled in the report, being monitored and tracked?

Discriminatory surveillance chills free speech, the right to associate freely, and religious expression.

An ACLU-led coalition has sent a letter to the Obama Administration asking for a full accounting of the practices revealed in the report. The letter also highlights the need to strengthen the Department of Justice’s Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, so that profiling on the basis of religion, sexual orientation, gender identity, and national origin is conclusively prohibited.

The letter explains:

In an earlier era, during the 1960s and 1970s, civil rights leaders, activists and members of minority communities were subjected to unlawful and abusive government surveillance based not on what they had done, but what they believed and who they were. Despite reform efforts, abusive practices continue today. Federal, state, and local law enforcement are targeting entire communities—particularly American Muslims—for secret surveillance based on their race, religion, ethnicity or national origin.

The First Look report is troubling because it arises in this broader context of abuse. Documents obtained through an American Civil Liberties Union Freedom of Information Act request show that the FBI has been mapping a broad spectrum of communities, including American Muslim communities, the African American community and Latino American communities, without any basis for individualized suspicion. Under the guise of community outreach, the FBI targeted mosques and Muslim community organizations for intelligence gathering. It has pressured law-abiding American Muslims to become informants against their own communities, often in coercive circumstances. It has also stigmatized innocent Muslims by placing them on the No Fly List and other watch lists. In short, the government’s domestic counterterrorism policies treat entire minority communities as suspect, and American Muslims have borne the brunt of government suspicion, stigma and abuse.

These practices hurt not only American Muslims, but all communities that expect law enforcement to serve and protect America’s diverse population equally, without discrimination. They strike the bedrock of democracy: that no one should grow up fearful of law enforcement, scared to exercise the rights to freedom of speech, association and worship.

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Civil Liberties, First Amendment, Privacy & Security, Public Policy, Videos

Glenn Greenwald: Why Privacy Matters

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Glenn Greenwald was one of the first reporters to see — and write about — the Edward Snowden files, with their revelations about the United States’ extensive surveillance of private citizens. In this searing talk, Greenwald makes the case for why you need to care about privacy, even if you’re “not doing anything you need to hide.”

Civil Liberties, First Amendment, Privacy & Security, Public Policy

Revealed: How the FBI Coordinated the Crackdown on Occupy

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New documents prove what was once dismissed as paranoid fantasy: totally integrated corporate-state repression of dissent

It was more sophisticated than we had imagined: new documents show that the violent crackdown on Occupy last fall – so mystifying at the time – was not just coordinated at the level of the FBI, the Department of Homeland Security, and local police. The crackdown, which involved, as you may recall, violent arrests, group disruption, canister missiles to the skulls of protesters, people held in handcuffs so tight they were injured, people held in bondage till they were forced to wet or soil themselves –was coordinated with the big banks themselves.

The Partnership for Civil Justice Fund, in a groundbreaking scoop that should once more shame major US media outlets (why are nonprofits now some of the only entities in America left breaking major civil liberties news?), filed this request. The document – reproduced here in an easily searchable format – shows a terrifying network of coordinated DHS, FBI, police, regional fusion center, and private-sector activity so completely merged into one another that the monstrous whole is, in fact, one entity: in some cases, bearing a single name, the Domestic Security Alliance Council. And it reveals this merged entity to have one centrally planned, locally executed mission. The documents, in short, show the cops and DHS working for and with banks to target, arrest, and politically disable peaceful American citizens.

The documents, released after long delay in the week between Christmas and New Year, show a nationwide meta-plot unfolding in city after city in an Orwellian world: six American universities are sites where campus police funneled information about students involved with OWS to the FBI, with the administrations’ knowledge (p51); banks sat down with FBI officials to pool information about OWS protesters harvested by private security; plans to crush Occupy events, planned for a month down the road, were made by the FBI – and offered to the representatives of the same organizations that the protests would target; and even threats of the assassination of OWS leaders by sniper fire – by whom? Where? – now remain redacted and undisclosed to those American citizens in danger, contrary to standard FBI practice to inform the person concerned when there is a threat against a political leader (p61).
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As Mara Verheyden-Hilliard, executive director of the PCJF, put it, the documents show that from the start, the FBI – though it acknowledges Occupy movement as being, in fact, a peaceful organization – nonetheless designated OWS repeatedly as a “terrorist threat”:

“FBI documents just obtained by the Partnership for Civil Justice Fund (PCJF) … reveal that from its inception, the FBI treated the Occupy movement as a potential criminal and terrorist threat … The PCJF has obtained heavily redacted documents showing that FBI offices and agents around the country were in high gear conducting surveillance against the movement even as early as August 2011, a month prior to the establishment of the OWS encampment in Zuccotti Park and other Occupy actions around the country.”

Verheyden-Hilliard points out the close partnering of banks, the New York Stock Exchange and at least one local Federal Reserve with the FBI and DHS, and calls it “police-statism”:

“This production [of documents], which we believe is just the tip of the iceberg, is a window into the nationwide scope of the FBI’s surveillance, monitoring, and reporting on peaceful protestors organizing with the Occupy movement … These documents also show these federal agencies functioning as a de facto intelligence arm of Wall Street and Corporate America.”

The documents show stunning range: in Denver, Colorado, that branch of the FBI and a “Bank Fraud Working Group” met in November 2011 – during the Occupy protests – to surveil the group. The Federal Reserve of Richmond, Virginia had its own private security surveilling Occupy Tampa and Tampa Veterans for Peace and passing privately-collected information on activists back to the Richmond FBI, which, in turn, categorized OWS activities under its “domestic terrorism” unit. The Anchorage, Alaska “terrorism task force” was watching Occupy Anchorage. The Jackson, Mississippi “joint terrorism task force” was issuing a “counterterrorism preparedness alert” about the ill-organized grandmas and college sophomores in Occupy there. Also in Jackson, Mississippi, the FBI and the “Bank Security Group” – multiple private banks – met to discuss the reaction to “National Bad Bank Sit-in Day” (the response was violent, as you may recall). The Virginia FBI sent that state’s Occupy members’ details to the Virginia terrorism fusion center. The Memphis FBI tracked OWS under its “joint terrorism task force” aegis, too. And so on, for over 100 pages.

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Jason Leopold, at Truthout.org, who has sought similar documents for more than a year, reported that the FBI falsely asserted in response to his own FOIA requests that no documents related to its infiltration of Occupy Wall Street existed at all. But the release may be strategic: if you are an Occupy activist and see how your information is being sent to terrorism task forces and fusion centers, not to mention the “longterm plans” of some redacted group to shoot you, this document is quite the deterrent.

There is a new twist: the merger of the private sector, DHS and the FBI means that any of us can become WikiLeaks, a point that Julian Assange was trying to make in explaining the argument behind his recent book. The fusion of the tracking of money and the suppression of dissent means that a huge area of vulnerability in civil society – people’s income streams and financial records – is now firmly in the hands of the banks, which are, in turn, now in the business of tracking your dissent.

Remember that only 10% of the money donated to WikiLeaks can be processed – because of financial sector and DHS-sponsored targeting of PayPal data. With this merger, that crushing of one’s personal or business financial freedom can happen to any of us. How messy, criminalizing and prosecuting dissent. How simple, by contrast, just to label an entity a “terrorist organization” and choke off, disrupt or indict its sources of financing.

Why the huge push for counterterrorism “fusion centers”, the DHS militarizing of police departments, and so on? It was never really about “the terrorists”. It was not even about civil unrest. It was always about this moment, when vast crimes might be uncovered by citizens – it was always, that is to say, meant to be about you.

• This article originally referred to a joint terrorism task force in Jackson, Michigan. This was amended to Jackson, Mississippi at 4pm ET on 2 January 2012

Civil Liberties, First Amendment, Privacy & Security, Public Policy, Videos

Mass Surveillance: Implications on Privacy and Speech

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This entertaining five minute video discusses the legality of the government’s current domestic mass surveillance program, making the case that it invades our privacy and places an unconstitutional chilling effect upon First Amendment speech and political association. Brought to you by Fight for the Future and Demand Progress.

Civil Liberties, Fourth Amendment, Privacy & Security, Public Policy, Videos

Police Surveillance and Predictive Policing

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Privacy today faces growing threats from a growing surveillance apparatus that is often justified in the name of crime prevention. This video short brought to you by AJ+ summarizes some of the highly intrusive technology which allows law enforcement to conduct targeted surveillance against individuals who are not suspected of engaging in any criminal activity.  Numerous law enforcement agencies—including the Federal Bureau of Investigation, private security contractors and state and local police departments—intrude upon the private communications of innocent citizens, amass vast databases of who we call and when, and catalog “suspicious activities” based on the vaguest of standards. The government’s collection of this sensitive information is itself an invasion of privacy. But its use of this data is also rife with abuse as innocuous data is fed into bloated watchlists, with severe consequences upon individuals who do not even realize why they have been targeted. History has repeatedly shown that powerful, state surveillance tools are most often abused for political ends which disproportionately target political dissidents and disfavored minorities.

Fourth Amendment, Privacy & Security, Public Policy

Cops scan social media to help assess your ‘threat rating’

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December 12, 2014

By Brent Skorup

A national spotlight is now focused on aggressive law enforcement tactics and the justice system. Today’s professional police forces — where officers in even one-stoplight towns might have body armor and mine-resistant vehicles — already raise concerns.

Yet new data-mining technologies can now provide police with vast amounts of surveillance information and could radically increase police power. Policing can be increasingly targeted at specific people and neighborhoods — with potentially serious inequitable effects.

One speaker at a recent national law enforcement conference compared future police work to Minority Report, the Tom Cruise film set in 2054 Washington, where a “PreCrime” unit has been set up to stop murders before they happen.

While PreCrime remains science-fiction, many technology advances are already involved with predictive policing — identifying risks and threats with the help of online information, powerful computers and Big Data.

New World Systems, for example, now offers software that allows dispatchers to enter in a person’s name to see if they’ve had contact with the police before.  Provided crime data, PredPol claims on its website that  its software “forecasts highest risk times and places for future crimes.” These and other technologies are supplanting and enhancing traditional police work.

Public safety organizations, using federal funding, are set to begin building a $7-billion nationwide first-responder wireless network, called FirstNet. Money is now being set aside. With this network, information-sharing capabilities and federal-state coordination will likely grow substantially. Some uses of FirstNet will improve traditional services like 911 dispatches. Other law enforcement uses aren’t as pedestrian, however.

One such application is Beware, sold to police departments since 2012 by a private company, Intrado. This mobile application crawls over billions of records in commercial and public databases for law enforcement needs. The application “mines criminal records, Internet chatter and other data to churn out … profiles in real time,” according to one article in an Illinois newspaper.

Here’s how the company describes it on their website:

Accessed through any browser (fixed or mobile) on any Internet-enabled device including tablets, smartphones, laptop and desktop computers, Beware® from Intrado searches, sorts and scores billions of commercial records in a matter of seconds-alerting responders to potentially deadly and dangerous situations while en route to, or at the location of a call.

Crunching all the database information in a matter of seconds, the Beware algorithm then assigns a score and “threat rating” to a person — green, yellow or red. It sends that rating to a requesting officer.

For example, working off a home address, Beware can send an officer basic information about who lives there, their cell phone numbers, whether they have past convictions and the cars registered to the address. Police have had access to this information before, but Beware makes it available immediately.

Yet it does far more — scanning the residents’ online comments, social media and recent purchases for warning signs. Commercial, criminal and social media information, including, as Intrado vice president Steve Reed said in an interview with urgentcomm.com, “any comments that could be construed as offensive,” all contribute to the threat score.

There are many troubling aspects to these programs. There are, of course, obvious risks in outsourcing traditional police work — determining who is a threat — to a proprietary algorithm. Deeming someone a public threat is a serious designation, and applications like Beware may encourage shortcuts and snap decisions.

It is also disconcerting that police would access and evaluate someone’s online presence. What types of comments online will increase a threat score? Will race be apparent?

These questions are impossible to answer because Intrado merely provides the tool — leaving individual police departments to craft specific standards for what information is available and relevant in a threat score. Local departments can fine-tune their own data collection, but then threat thresholds could vary by locale, making oversight nearly impossible.

Tradition holds that justice should be blind, to promote fairness in treatment and avoid prejudgment. With such algorithms, however, police can have significant background information about nearly everyone they pull over or visit at home. Police are time-constrained, and vulnerable populations – such as minorities living in troubled neighborhoods and the poor — may receive more scrutiny.

No one wants the police to remain behind a thick veil of ignorance, but invasive tools like Beware — if left unchecked — may amplify the current unfairness in the system, including racial disparities in arrests and selective enforcement.

Intrado representatives defend Beware’s perceived intrusiveness, pointing out that credit agencies have similar types of information. This data-mining program, however, goes beyond financial records to include social media, purchases and online comments when assigning a rating.

And no system is foolproof. Congress, for example, recognizes the sensitivity of the information that lenders and employers have, because errors can cause serious financial harm. The Fair Credit Reporting Act therefore gives consumers the right to access their credit reports and make corrections.

The risks to life and property, however, are far higher and more unpredictable in the law enforcement context. Yet there is no mechanism for people to see their threat “ratings” — much less why the algorithm scored it. You have no ability to correct errors if, say, someone with the same name has a violent criminal record.

Another effect is that these technologies give law enforcement the ability to routinely monitor obedience to regulatory minutiae and lawmaker whims. Police officers now boast, for example, that the Beware system allows the routine code enforcement of a nanny state — such as identifying homeowners so overgrown trees on a property can be trimmed.

Beware can also encourage fishing expeditions and indiscriminate surveillance in the hopes of finding offenders. Police used Beware recently at a Phish concert in Colorado, for example, checking up on concertgoers based on car license plates.

Perhaps the most serious issue is that such systems may be used as pretext in unconstitutional investigations. John Shiffman and Kristina Cooke reported for Reuters last year that a secretive Drug Enforcement Administration unit regularly funnels information to other law enforcement agencies in order to launch criminal investigations. This information is frequently acquired via intelligence intercepts, wiretaps and informants. As the FirstNet national wireless network rolls out, federal-state coordination will likely increase opportunities for police to receive sensitive information from powerful federal agencies.

Data-mining gives police significantly more information to create reasonable suspicion for suspects that federal agencies flag. Officers could receive a search or arrest warrant with the help of information gleaned from Beware and other databases, like those tracking license plates. If an arrest follows, data-mining helps provide the police with the legal pretext to engage in these fishing expeditions. Defendants will likely have no opportunity to challenge the legality of the original surveillance that led to their arrest.

As predictive policing investment ramps up, and local police and federal agencies increasingly coordinate, more secrecy becomes more valuable. Local police and prosecutors often refuse to disclose how they gain information about defendants because federal agencies prohibit them from discussing these technologies. In Baltimore, for example, police recently dropped evidence against a defendant rather than reveal information about cellphone tracking that the FBI did not want disclosed in court.

Yet police might not acquire some of this equipment if the local community is made fully aware of its use. Consider, the city council of Bellingham, Wash., recently rejected a proposed purchase of Beware. The police department had applied for, and received, a one-time $25,000 federal grant to cover some of the $36,000 annual cost of Beware. At a mandatory hearing about the purchase, Bellingham citizens discovered how Beware worked and opposed the purchase because of both the cost and the privacy implications. The funds were subsequently redirected.

This rejection demonstrates that many modern policing techniques — and the accompanying secrecy — can antagonize the average citizen. The occasional appearance of sniper rifles and military vehicles only stokes that sentiment. Local police forces increasingly receive military surplus equipment and federal lucre from an alphabet soup of U.S. agencies and opportunistic contractors. Now police are using, typically without residents’ knowledge, powerful databases, along with cellphone and license-plate trackers.

Police need guidance about under which circumstances these sophisticated databases can be used. An inaccurate threat level for a residence, after all, can change how police approach a situation. Failure to update who lives at a particular residence, for example, could transform a green rating into a red rating — turning a midday knock on the front door into a nighttime SWAT raid.

Fourth Amendment, Privacy & Security, Public Policy

Exclusive: U.S. Directs Agents to Cover Up Program Used to Investigate Americans

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US | Mon Aug 5, 2013 3:25pm EDT

WASHINGTON | BY JOHN SHIFFMAN AND KRISTINA COOKE

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

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.”

THE SPECIAL OPERATIONS DIVISION

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

Today, much of the SOD’s work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked “Law Enforcement Sensitive,” a government categorization that is meant to keep them confidential.

“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.”

A spokesman with the Department of Justice, which oversees the DEA, declined to comment.

But two senior DEA officials defended the program, and said trying to “recreate” an investigative trail is not only legal but a technique that is used almost daily.

A former federal agent in the northeastern United States who received such tips from SOD described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said.

“PARALLEL CONSTRUCTION”

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.”

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

“It’s just like laundering money – you work it backwards to make it clean,” said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.

Some defense lawyers and former prosecutors said that using “parallel construction” may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.

A QUESTION OF CONSTITUTIONALITY

“That’s outrageous,” said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. “It strikes me as indefensible.”

Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin “would not only be alarming but pretty blatantly unconstitutional.”

Lustberg and others said the government’s use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant’s identity or classified evidence, to determine whether the information is relevant to the defense.

“You can’t game the system,” said former federal prosecutor Henry E. Hockeimer Jr. “You can’t create this subterfuge. These are drug crimes, not national security cases. If you don’t draw the line here, where do you draw it?”

Some lawyers say there can be legitimate reasons for not revealing sources. Robert Spelke, a former prosecutor who spent seven years as a senior DEA lawyer, said some sources are classified. But he also said there are few reasons why unclassified evidence should be concealed at trial.

“It’s a balancing act, and they’ve doing it this way for years,” Spelke said. “Do I think it’s a good way to do it? No, because now that I’m a defense lawyer, I see how difficult it is to challenge.”

CONCEALING A TIP

One current federal prosecutor learned how agents were using SOD tips after a drug agent misled him, the prosecutor told Reuters. In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.

“I was pissed,” the prosecutor said. “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.

A senior DEA official said he was not aware of the case but said the agent should not have misled the prosecutor. How often such misdirection occurs is unknown, even to the government; the DEA official said the agency does not track what happens with tips after the SOD sends them to agents in the field.

The SOD’s role providing information to agents isn’t itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court.

The DEA has long publicly touted the SOD’s role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don’t accidentally try to arrest each other.

SOD’S BIG SUCCESSES

The unit also played a major role in a 2008 DEA sting in Thailand against Russian arms dealer Viktor Bout; he was sentenced in 2011 to 25 years in prison on charges of conspiring to sell weapons to the Colombian rebel group FARC. The SOD also recently coordinated Project Synergy, a crackdown against manufacturers, wholesalers and retailers of synthetic designer drugs that spanned 35 states and resulted in 227 arrests.

Since its inception, the SOD’s mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit’s annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.

Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE.

The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said.

About 10,000 federal, state and local law enforcement agents have access to the DICE database, records show. They can query it to try to link otherwise disparate clues. Recently, one of the DEA officials said, DICE linked a man who tried to smuggle $100,000 over the U.S. southwest border to a major drug case on the East Coast.

“We use it to connect the dots,” the official said.

“AN AMAZING TOOL”

Wiretap tips forwarded by the SOD usually come from foreign governments, U.S. intelligence agencies or court-authorized domestic phone recordings. Because warrantless eavesdropping on Americans is illegal, tips from intelligence agencies are generally not forwarded to the SOD until a caller’s citizenship can be verified, according to one senior law enforcement official and one former U.S. military intelligence analyst.

“They do a pretty good job of screening, but it can be a struggle to know for sure whether the person on a wiretap is American,” the senior law enforcement official said.

Tips from domestic wiretaps typically occur when agents use information gleaned from a court-ordered wiretap in one case to start a second investigation.

As a practical matter, law enforcement agents said they usually don’t worry that SOD’s involvement will be exposed in court. That’s because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.

Current and former federal agents said SOD tips aren’t always helpful – one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away.

“It was an amazing tool,” said one recently retired federal agent. “Our big fear was that it wouldn’t stay secret.”

DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.

(Edited by Blake Morrison)

Privacy & Security, Public Policy, Videos

Greenwald Meets Bernstein: From Watergate to Snowden

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Glenn Greenwald and Carl Bernstein discuss how NSA surveillance has affected contemporary investigative journalism with  journalist, Fredrik Laurin, of Swedish Radio. Greenwald and Bernstien discuss the U.S. Government’s history of placing journalists, activists and whistleblowers under surveillance. Greenwald discusses how the Snowden revelations have affected the precautions investigative journalists must take  to protect their sources (and themselves), as well as the current practice of prosecuting whistleblowers under the Obama administration.  Bernstein explores how institutional secrecy has increased since Watergate and suggests that there is much less oversight of intelligence abuses than in the past.

Privacy & Security, Public Policy

NSA Program Stopped No Terror Attacks, Says White House Panel Member

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by Michael Isikoff

A member of the White House review panel on NSA surveillance said he was “absolutely” surprised when he discovered the agency’s lack of evidence that the bulk collection of telephone call records had thwarted any terrorist attacks.

“It was, ‘Huh, hello? What are we doing here?’” said Geoffrey Stone, a University of Chicago law professor, in an interview with NBC News. “The results were very thin.”

While Stone said the mass collection of telephone call records was a “logical program” from the NSA’s perspective, one question the White House panel was seeking to answer was whether it had actually stopped “any [terror attacks] that might have been really big.”

“We found none,” said Stone.

Under the NSA program, first revealed by ex-contractor Edward Snowden, the agency collects in bulk the records of the time and duration of phone calls made by persons inside the United States.

Stone was one of five members of the White House review panel – and the only one without any intelligence community experience – that this week produced a sweeping report recommending that the NSA’s collection of phone call records be terminated to protect Americans’ privacy rights.

The panel made that recommendation after concluding that the program was “not essential in preventing attacks.”

“That was stunning. That was the ballgame,” said one congressional intelligence official, who asked not to be publicly identified. “It flies in the face of everything that they have tossed at us.”

Despite the panel’s conclusions, Stone strongly rejected the idea they justified Snowden’s actions in leaking the NSA documents about the phone collection. “Suppose someone decides we need gun control and they go out and kill 15 kids and then a state enacts gun control?” Stone said, using an analogy he acknowledged was “somewhat inflammatory.” What Snowden did, Stone said, was put the country “at risk.”

“My emphatic view,” he said, “is that a person who has access to classified information — the revelation of which could damage national security — should never take it upon himself to reveal that information.”

Stone added, however, that he would not necessarily reject granting an amnesty to Snowden in exchange for the return of all his documents, as was recently suggested by a top NSA official. “It’s a hostage situation,” said Stone. Deciding whether to negotiate with him to get all his documents back was a “pragmatic judgment. I see no principled reason not to do that.”

The conclusions of the panel’s reports were at direct odds with public statements by President Barack Obama and U.S. intelligence officials. “Lives have been saved,” Obama told reporters last June, referring to the bulk collection program and another program that intercepts communications overseas. “We know of at least 50 threats that have been averted because of this information.”

But in one little-noticed footnote in its report, the White House panel said the telephone records collection program – known as Section 215, based on the provision of the U.S. Patriot Act that provided the legal basis for it – had made “only a modest contribution to the nation’s security.” The report said that “there has been no instance in which NSA could say with confidence that the outcome [of a terror investigation] would have been any different” without the program.

The panel’s findings echoed that of U.S. Judge Richard Leon, who in a ruling this week found the bulk collection program to be unconstitutional. Leon said that government officials were unable to cite “a single instance in which analysis of the NSA’s bulk collection metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

Stone declined to comment on the accuracy of public statements by U.S. intelligence officials about the telephone collection program, but said that when they referred to successes they seemed to be mixing the results of domestic metadata collection with the intelligence derived from the separate, and less controversial, NSA program, known as 702, to intercept communications overseas.

The comparison between 702 overseas interceptions and 215 bulk metadata collection was “night and day,” said Stone. “With 702, the record is very impressive. It’s no doubt the nation is safer and spared potential attacks because of 702. There was nothing like that for 215. We asked the question and they [the NSA] gave us the data. They were very straight about it.”

He also said one reason the telephone records program is not effective is because, contrary to the claims of critics, it actually does not collect a record of every American’s phone call. Although the NSA does collect metadata from major telecommunications carriers such as Verizon and AT&T, there are many smaller carriers from which it collects nothing. Asked if the NSA was collecting the records of 75 percent of phone calls, an estimate that has been used in briefings to Congress , Stone said the real number was classified but “not anything close to that” and far lower.

When panel members asked NSA officials why they didn’t expand the program to include smaller carriers, the answer they gave was “money,” Stone said. “They were setting financial priorities,” said Stone, and that was “really revealing” about how useful the bulk collection of telephone calls really was.

An NSA spokeswoman declined to comment on any aspect of the panel’s report, saying the agency was deferring to the White House. Asked Wednesday about the surveillance panel’s conclusions about telephone record collection, White House press secretary Jay Carney said that “the president does still believe and knows that this program is an important piece of the overall efforts that we engage in to combat threats against the lives of American citizens and threats to our overall national security.”

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