Secret Unit SOD, Division of DEA, Fabricating Criminal Investigations

The government is caught in the middle of another lie.  The lies we were told of the NSA program that is supposedly only metadata of every American’s phone records is collected and kept under lock and key.  Those little bits of information as told to the public were only numbers, the length of call, and the number being called.  Of course, we were told if the call was not to a known terrorist within the US or was not outside of the US we had nothing to worry about, right?

Thanks to Snowden, the American public is well aware now that phone companies send the government a list of “metadata” for every call made on their networks, because of a secret order by the F.I.S.A. Court.  Revelations through the leaks, that have not been denied, turned out that this collection has been going on for over seven years.  None of the leaked information to date has been denied by the National Security Agency or the administration, but rather shrugged off in more of a contemptuous attitude of what difference does it make.

Americans should be worried; even more so since the President himself assured us that “nobody is listening to our telephone calls.”  It seems that the American public just breathed a sigh of relief as they wiped their brows since it is just bits and pieces of innocuous information that no one should concern them with the right, after all, it is just metadata?

Wrong!  According to Reuters, a secretive U.S. DEA unit has been 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 without any terrorist connection or suspicions.

The DEA cases rarely involve national security risks but according to documents that Reuters were able to review the agency has been directed to conceal how the investigations were initiated from defense lawyers, prosecutors and even judges.

The documents revealed that they were undated, and instructions to federal agents were to recreatean investigative trail to legitimize the case, and effectively cover up where the information had been originated from a un-Constitutional practice.

These practices violate the defendant’s capability of a fair trial by hiding the sources of the exculpatory evidence, the actual process that the information was obtained reducing if not eliminating the defense of entrapment, mistakes or biased witnesses.

I have never heard of anything like this at all, said Nancy Gertner, a Harvard Law School professor who also has served as a federal judge from 1994 to 2011.

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, or commonly known as SOD, is the special unit based out of Virginia, keeping its exact location secret.  Everything about this organization is secret, from the location, to who gives the orders, to how the orders are obtained, to even the investigative material’s collection.

The SOD unit is a part of the DEA that works with two dozen partner agencies within the Unit, including the FBI, CIA, IRS, NSA and the DHS.  Originally created in 1994 to combat Latin American Drug Cartels, it has grown from several dozen employees to hundreds according to the report.  The objectives of the SOD unit seem to have expanded as well, but exact work is classified, and is marked as Law Enforcement Sensitive.

According to Reuters, 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 SODs 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.

The Department of Justice declined to comment on SOD, the functions of the unit, or how it is being implemented or information obtained by the agencies including the NSA metadata program.  However, two senior DEA officials were quick to defend the program and said that trying to “recreate” an investigation was not only legal but a technique 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 sowed alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it, the agent said.

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.

When asked about the Constitutionality of the practice of SOD many statements were obtained by Reuters in the investigation. 

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.

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?

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.

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.

As a practical matter, law enforcement agents said they usually don’t worry that SODs 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.

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