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DOJ Inspector General Investigating DEA’s Use of Parallel Construction under Hemisphere

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Screen Shot 2014-04-18 at 11.02.49 AMAs I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.

Of particular interest is this investigation.

Administrative Subpoenas

The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.

The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.

The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.

Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.

Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.

Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.

And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.

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.

[snip]

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.

Presuming that Horowitz is investigating whether DEA’s extensive use of parallel construction complies with the Constitution (and not, as is possible, whether the sources of this information are being adequately buried), this is welcome news indeed.

But it’s also one of several reasons why I’m particularly alarmed, in retrospect, that Horowitz is complaining about his ability to get grand jury information without having to get either Attorney General Holder or Deputy Attorney General James Cole to personally approve it.

After all, the only way you can learn what truly happens in prosecutions that have used parallel construction to hide their sources is to work backward from the actual prosecution. Read more →

If the Drug Czar Does Not Supervise the Money It Doles Out, Who Does?

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At the Daily Press Briefing today, Jay Carney was asked whether the White House approves of the NYPD spying on New York and New Jersey’s Muslim communities.

He responded by claiming that the Office of National Drug Control Policy–the Drug Czar!–has no authority over the money.

The Office of National Drug Control Policy is a policy office that has no authority–no authority to and does not conduct, direct, manage, or supervise any law enforcement operations. The funding is provided to the H-I-D-T-A, HIDTA program, of New York and New Jersey, which then provides it to law enforcement agencies to assist in the procurement of resources like computers and other items.

[snip]

This is not an Administration program or a White House program. This is a program of the NY Police Department.

Now, there’s reason to believe the response was bullshit. As the Drug Czar org chart above shows–and Deputy Drug Czar Benjamin Tucker’s biography makes clear–HIDTA is solidly in the chain of command in the Drug Czar’s office.

In his position, Mr. Tucker oversees ONDCP’s High Intensity Drug Trafficking Areas (HIDTA) program , Drug-Free Communities (DFC), National Youth-Anti-Drug Media Campaign, and Counter-Drug Technology Assessment Center (CTAC).

With 40 years of experience in the fields of law enforcement and criminal justice, Mr. Tucker is a recognized expert in community policing.

Furthermore, the Director of HIDTA, Dr. Ellen Scrivner, has her office in the Executive Office of the President.

Drug Czar Gil Kerlikowske “coordinates all aspects of Federal drug control programs” and one of those programs is HIDTA, which apparently funds spying on Muslims. And the Drug Czar’s Policy Coordination Circular–which was updated on August 3, 2011–requires that the Drug Czar review any chances to “drug policy.”

Pursuant to 21 U.S.C. §1704(b), agencies are required, except under exigent circumstances, to notify ONCDP of any proposed change in policies relating to their activities under the National Drug Control Program prior to implementation of such change.

[snip]

The Director of ONCDP reviews such proposed changes and certifies in writing whetehr such change is consistent with the National Drug Control Strategy.

In other words, Obama’s Deputy Drug Czar oversees this program, its Director works in EOP, and any changes on anything pertaining to drug policy must be approved by the Drug Czar.

That kind of micro-management inside the White House is the whole point of having a Czar rather than a congressionally-supervised agency head.

Read more →