NSA: Keeping Us Safe From…Dope Peddlers

The Justice Department says it is reviewing the Drug Enforcement Administration's "Special Operations Division"—the subject of an explosive report published by Reuters on Monday. The SOD works to funnel information collected by American intelligence agencies to ordinary narcotics cops—then instructs them to "phony up investigations," as one former judge quoted in the story put it, in order to conceal the true source of the information. In some instances, this apparently involves not only lying to defense attorneys, but to prosecutors and judges as well.

DEA is taking a predictable "nothing to see here" stance in its public responses to the story, but on its face this seems like a fairly brazen violation of the right to due process. As several legal experts quoted in the Reuters article point out, the accused in our criminal justice system cannot effectively defend themselves unless they know how evidence against them was obtained, and this program is clearly designed to deprive them of that knowledge. Moreover, at least some of the information channeled to police derives from FISA electronic surveillance, and 50 USC §1806 explicitly requires the government to notify persons whenever it intends to use information "derived from" such intercepts against them in any legal proceeding. Flouting that requirement is doubly troubling because, in light of the Supreme Court's recent ruling in Amnesty v. Clapper, the only way for any court to review the constitutionality of intelligence programs is for a defendant to raise a challenge after being informed that they've been subject to surveillance.

One way they're able to get away with this is by exploiting the fact that our justice system relies so heavily on plea bargains. Prosecutors stack up charges against defendants in hopes of effectively coercing them into waiving their constitutional right to a jury trial and accepting a plea deal, which even for the innocent may make more sense than risking a conviction that could lead to an enormously longer jail sentence. Conveniently, avoiding a trial also greatly reduces the risk that one of these "phonied up" investigations will be exposed.

The Reuters report also suggests—though without providing any detail—that the NSA's controversial phone records database is one source of leads provided to narcotics police. On face this might seem to conflict with repeated assurances from  the administration that these records can only be used for counterterrorism purposes. But there are a few important loopholes. First, as the ACLU's Patrick Toomey notes, NSA analysts may only submit "seed" queries to the database if they have a reasonable suspicion that the terms they're searching—such as a phone number—is linked to a terror group specified in the court order authorizing the metadata program. But those queries then return the phone records of everyone within three degrees of separation, or "hops," from the initial target number—which could easily sweep in thousands or tens of thousands of people—and dump them in a second database, called the "corporate store," which can subsequently be accessed without restrictions or, indeed, without even creating an audit log of how it was accessed. Thus if a terror suspect's cousin (one hop) calls a drug dealer (two hops), the phone records of that dealer's suppliers (three hops) might automatically end up in the secondary database. There doesn't appear to be anything stopping NSA analysts from then running algorithms against that database designed to detect call patterns characteristic of narcotics rings on behalf of their friends at DEA. From there, it is probably not too hard for government lawyers to justify the dissemination of the results to law enforcement: narcotics trafficking, after all, often funds the activities of foreign cartels engaged in "narco-terrorism," and so ordinary enforcement of domestic drug laws can be classified as serving a "counterterrorism purpose" to the extent it disrupts those flows of funds.

Appropriately enough, this story comes just days after a New York Times report on how many govermnent agencies are greedily eyeing the vast stores of data collected by NSA. This should serve as a crucial reminder that you can't build a massive architecture of surveillance "just for terrorism" and expect it to remain limited to that function: once the apparatus exists, there will inevitably be incredible pressure from other interests within government to expand its use. Once the data is already begin collected, after all, it seems a waste not to exploit its full potential. And indeed, we've seen again and again how—mostly because there just aren't all that many terrorists out there—powers and programs justified by the need to fight the War on Terror end up getting coopted for the War on Drugs, from the Patriot Act's "Sneak and Peek" searches (used almost exclusively in drug rather than terror investigations) to federally funded "fusion centers."

For those interested in a more extended discussion, I joined a panel on HuffPost Live on Monday evening to talk about the story in depth.