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U.S. tells agents to cover up use of wiretap program

By John Shiffman

WASHINGTON – 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)

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Here’s How the Obama Administration Defended DEA Agents Who Put a Gun to a Little Girl’s Head

Mike Riggs | June 19, 2012

The Ninth Circuit Court of Appeals ruled last week that the DEA’s use of force against the 11-year-old and 14-year-old daughters of Thomas and Rosalie Avina–which included putting a gun to the youngest girl’s head–was “excessive,” “unreasonable,” and constituted “intentional infliction of emotional distress.”

Attorneys for the Obama administration defended the raid, and Reason has obtained the brief the DOJ filed to the Ninth Circuit. In it, the Obama administration argues that “the DEA agents’ conduct was plainly reasonable under the circumstances.”

After subduing their parents, agents broke into the two girls’ bedrooms during a wrong-door raid in January, 2007. The oldest of the two girls dropped to the floor and was handcuffed by agents before being dragged into the living room and laid next to her mom and dad. The 11-year-old, however, was sleeping when agents came into her room. As they began to shout at her to “get on the fucking ground,” the girl woke up and “froze in fear.” Agents then dragged her from her bed to the floor. One agent handcuffed her while another aimed a gun at her head.

Citing Muehler v. Mena, the unanimous 2005 Supreme Court decision that established the right of law enforcement agents to detain residents during a raid for an unspecified amount of time—Iris Mena and several of her tenants were handcuffed and left in a garage for three hours while federal agents ransacked her home looking for evidence to use against a suspected gang member boarding with Mena—the Obama administration argued to the Ninth Circuit that the DEA agents were acting within the law when they handcuffed the entire Avina family.

The Obama administration’s argument is based on the agents’ belief that the home they were preparing to raid on January 20, 2007, belonged to suspected drug trafficker Louis Alvarez, who “had a history of violence and resisting arrest.” The agents anticipated that Alvarez would be armed, and that the only way they could safely arrest him would be with an early morning raid. While agents would later learn that they had the wrong house, they didn’t know that when they battered down the Avinas’ front door, guns ready.

To a certain extent, the Ninth Circuit Court of Appeals agreed with the DOJ’s brief. It upheld the lower court’s ruling that the treatment of Thomas and Rosalie Avina—Thomas resisted the agents’ commands and was tackled to the ground and handcuffed at gunpoint; Rosalie voluntarily dropped to the floor—was not unreasonable or unlawful.

But what of the children? To sway the court, Obama administration lawyers softened their depiction of the agents’ treatment of the 11-year-old and 14-year-old girls:

Agents also entered the bedrooms of plaintiffs B.F. and B.S. Avina, who were then fourteen and eleven years old, respectively. Both girls were in bed at the time, and B.S. was sleeping. B.F. complied with the agents’ instruction to get on the ground, and the agents thereafter handcuffed her. B.S. initially resisted the instruction, and agents responded by assisting her to the floor and handcuffing her. The agents did not use profanity in speaking to the girls.

Compared to the Ninth Circuit’s ruling, which uses the facts presented by the Avinas, this is an utter white-washing. The girl identified as “B.S.” is the Avinas’ 11-year-old daughter. She did not “resist the instruction,” but was “frozen in fear.” Agents did not “assist her to the floor,” they dragged her off her bed. They did not just handcuff her, they held a gun to her head.

The Obama administration also white-washed the agents use of profanity during the raid. According to the Ninth Circuit’s ruling (which–again–is based on the Avinas’ brief), the agents told both girls to “get down on the fucking ground.” According to the Obama administration’s brief, however, the use of profanity was spare:

In response to plaintiffs’ contention that “the allegedly extensive use of profanity somehow contributes to a finding that the agents used unreasonable force,” the [lower] court noted that there was “no evidence that suggests any use of profanity was extensive.” To the contrary, the court observed that “the evidence demonstrates that the agents sparsely used profanity,” and “did so only in association with commands during entry directed solely at the adults.”  Id.  “Though B.F. Avina testified that she heard profanity used in the background during the agents’ entry, neither B.F. nor [B.S.] Avina testified that any of the agents used any profanity directed at them.”  Id. (internal citation omitted).

If neither of the daughters testified about the officers’ profanity, why is it in the Ninth Circuit’s Ruling? And why did the Obama administration omit from its own brief that an officer aimed a gun at the 11-year-old’s head?

Also, there’s something insidious about the word “assist”: According to the Obama administration’s brief, the agents “assisted” Thomas Avina to the floor as well, but the Ninth Circuit described the action thusly: “Agents ‘forcefully pushed’ Thomas Avina to the ground during the initial minutes of the search.”

Based on a recollection that is unique to the briefs filed by DOJ lawyers, the Obama administration asked the Ninth Circuit to uphold the lower court’s ruling on the following grounds:

Having probable cause to believe that a drug-trafficker was living at plaintiffs’ residence, DEA agents obtained warrants to arrest the suspect and to search the residence for firearms and other evidence of illegal drug-trafficking.  Plaintiffs were home when agents executed the warrants, and the agents reasonably detained plaintiffs, in handcuffs, while securing the premises.  Finding no evidence that the agents used force beyond that necessary to handcuff the plaintiffs, and concluding that the agents’ use of strong language was not excessive, the district court granted summary judgment for the United States on plaintiffs’ claims of assault and battery and intentional infliction of emotional distress.  This Court should affirm the district court’s judgment, as plaintiffs have adduced no evidence indicating that state law would impose liability in like circumstances.

And yet, of all the precedents the Obama administration cited, it did not name a single case in which a court had upheld the use of force against children.

But the administration’s brief doesn’t end there. Secondary to the question of whether the DEA agents committed assault and battery, and inflicted emotional distress, was the question of liability for a wrong-door raid. The DEA after all, made a big mistake. Not only were the Avinas innocent, but after being released, traveled immediately to a clinic where the whole family was medicated for anxiety.

Should the DEA be held unaccountable, at the very least, for raiding the wrong house? The Obama administration says no:

Plaintiffs [the Avinas] offer no argument or evidence suggesting that the agents did not in good faith act within the scope of the warrant in this case.  As plaintiffs note, evidence exists that the affidavit supporting the warrant erroneously stated that Alvarez’s car was registered to plaintiffs’ address.  But this deficiency was not apparent from the face of the warrant and therefore does not implicate the limited exception to Leon; there is no indication of any kind that the agents executing the warrant had reason to know of the error and acted other than in good faith.  To the contrary, the statement in the affidavit regarding the registration would tend to confirm the existence of probable cause to search the residence.

Any argument that the existence of an error in the affidavit undermines the validity of the warrant would similarly be unavailing in this case.  To challenge the validity of a warrant on that basis, a plaintiff “must make 1) a ‘substantial showing’ of deliberate falsehood or reckless disregard for the truth and 2) establish that, but for the dishonesty, the [search] would not have occurred.”  Liston v. Cnty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (quoting Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995)); see Franks v. Delaware, 438 U.S. 154, 171-72 (1978).  Plaintiffs have alleged no facts that could satisfy that standard.  Indeed, there is no suggestion that the error with respect to the vehicle registration was the result of anything other than inadvertence.  Plaintiffs have additionally failed to establish a triable issue of fact 20 Case: 11-55004   06/24/2011   Page: 26 of 32    ID: 7796875   DktEntry: 16with respect to whether the remaining evidence in the affidavit was nevertheless sufficient to establish probable cause.

Shorter version: Unless the victim of a wrong-door raid can prove that the mistake was an act of malice–it is almost never that–there is absolutely no legal recourse for suffering the shock-and-awe of a wrong-door raid.

The Obama administration has 45 days to decide whether it will appeal the Ninth Circuit’s decision.

Previously: Ninth Circuit to DEA: Putting a Gun to an 11-Year-Old’s Head Is Not OK

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Is ‘El Chapo’ back in border city of Nuevo Laredo?

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By Dudley Althaus and Dane Schiller
Wednesday, April 18, 2012

MEXICO CITY — Drug lord Joaquin “El Chapo” Guzman purportedly has come gunning for the vicious Zetas gang on the South Texas border, leaving 14 of their butchered bodies and a message vowing to rid Nuevo Laredo of its criminal scourge as a calling card.

“We have begun to clear Nuevo Laredo of Zetas because we want a free city and so you can live in peace,” proclaims a banner, under which were posed the bodies, as well as the gunmen presumably in Guzman’s employ. “We are narcotics traffickers and we don’t mess with honest working or business people.”

Guzman’s first attempt to seize Nuevo Laredo, bordering Laredo, in 2005 sparked a gangland war with the Zetas and their then-paymasters in the Gulf Cartel. The battles, complete with rocket attacks and massacres, killed more than 300 that year and gave birth to the hyper-violence still tormenting the borderlands and Mexico’s interior.

The Zetas and the Gulf Cartel won that earlier contest. Now Guzman, one of the most wanted men in the hemisphere, looks to be back.

This time he’s presenting himself as a White Knight, succeeding where Mexico’s military and federal police so far have failed in defeating the Zetas and restoring order.

“I’m going to teach these scum to work Sinaloa style,” the banner purportedly signed by Guzman sneers, “without kidnapping, without payoffs, without extortion.”

“As for you, 40,” the banner says, addressing Zetas boss Miguel Treviño by his code name Z-40. “I tell you that you don’t scare me.”

The message also warns Nuevo Laredo’s citizens that anyone who continues paying extortion money to the Zetas would be considered “a traitor.”

“Don’t forget that I’m your true father,” the banner advises in its sign off.

Photos of the mangled corpses first appeared Wednesday on Blog del Narco, a website that often posts up to date crime news in Mexico, and came a day after the 14 bodies were discovered stuffed into a minivan parked near Nuevo Laredo’s city hall. A note left with the bodies declared the victims “traitors.”

“Chapo is going to step up to the plate and become the protector of the poor people against the Zetas,” predicted Mike Vigil, retired chief of international operations for the Drug Enforcement Administration. “Obviously it is a vested interest because it behooves him and the other cartels to get rid of the Zetas that are causing a lot of problems for them.”

Vigil is a consultant in Mexico and in regular contact with senior government officials there.

While the banner and the threat it contains appear genuine, its authenticity couldn’t be verified. But officials in Laredo are watching closely.

“There is continued concern but we have dedicated all the resources necessary to ensure we don’t have a spillover on the Laredo side,” said Laredo Mayor Raul Salinas, a retired FBI agent. “Obviously any time we have a situation like this — and other cities on the border would react the same way — we monitor very carefully what happens on the other side of the river.”

Listed by Forbes magazine as one of the world’s wealthiest men, Guzman also is arguably Mexico’s most powerful crime boss. Though widely considered an old-school narcotics trafficker who generally has left civilians in peace, Guzman has been blamed for a number of atrocities in recent years.

The Sinaloan’s four-year struggle for Ciudad Juarez, bordering El Paso, has been blamed for the nearly 10,000 murders tallied there since. Some have credited Juarez’s nearly 40 percent decline in murders in recent months to Guzman’s reported victory in that battle.

Mexico’s other gangs, including Guzman’s have pushed back with the same brutality, dramatically escalating the bloodshed.

“The Zetas are trying to take over the country and they are a tremendous force to be reckoned with,” Vigil said. “It is a situation of fighting fire with fire and I think that you are going to see much more of that as the cartels engage them.”

dudley.althaus@chron.com

dane.schiller@chron.com

Read more: MySA.com

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