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As Reuters reported last August...
"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."
So, in this way, the NSA's warrantless surveillance can result in illegal law enforcement. And the FBI, the DEA and other organs of the deep state have become quite good at it, thank you very much.
Here's how it works: NSA's domestic surveillance -- though supposedly restricted to detecting terrorism -- gets wind of some potentially illegal activity unrelated to terrorism. So, NSA passes the information on to the relevant law enforcement agency. It could be a vehicle transporting illegal drugs or a transfer of suspicious funds or pretty much anything.
This evidence then sparks an investigation, but the original information can't be used legally because it was acquired illegally for "national security" purposes. After the tip, "parallel" law enforcement techniques are introduced to collect other evidence and arrest and charge the suspects/defendants.
The arrest is made to appear the splendid result of traditional detective techniques. However, if the court learns of the initial shenanigans, the defendant may be released because her/his constitutional rights were violated.
To avoid that possibility, the government simply perjures itself during the court discovery process by concealing the key role played by the NSA database, exculpatory evidence that could weaken or destroy the government's case.
Blackmail?
Last week a journalist asked me why I thought Congress' initial outrage -- seemingly genuine in some quarters -- over bulk collection of citizens' metadata had pretty much dissipated in just a few months. What started out as a strong bill upholding Fourth Amendment principles ended up much weakened with only a few significant restraints remaining against NSA's flaunting of the Constitution?
Let me be politically incorrect and mention the possibility of blackmail or at least the fear among some politicians that the NSA has collected information on their personal activities that could be transformed into a devastating scandal if leaked at the right moment.
Do not blanch before the likelihood that the NSA has the book on each and every member of Congress, including extramarital affairs and political deal-making. We know that NSA has collected such information on foreign diplomats, including at the United Nations in New York, to influence votes on the Iraq War and other issues important to U.S. "national security."
We also know how the late FBI Director J. Edgar Hoover used much more rudimentary technology a half century ago to develop dossiers on the personal indiscretions of political and ideological opponents. It makes sense that people with access to the NSA's modern surveillance tools would be sorely tempted to put these new toys to use in support of their own priorities.
I happened to be with a highly accomplished attorney -- one not involved in security law -- when we saw TV reporting that the Solicitor General of the United States had misled the U.S. Supreme Court. My lawyer friend kept shaking his head, with his mouth agape: "Now THAT is not supposed to happen" is all he could muster.
Other than the Supreme Court justices themselves, the Solicitor General is among the most influential members of the legal community. Indeed, the Solicitor General has been called the "tenth justice" as a result of the relationship of mutual trust that tends to develop between the justices and the Solicitor General.
Thus, while it is sad, it is hardly surprising that no one took Solicitor General Donald Verrilli Jr. to the woodshed. There are seldom penalties in Washington for playing fast and loose with the truth.
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