It looks like a pretty cool program with a reasonably high success rate, though there are reasons we should all be nervous about this.
The gist: the DEA, alongside multiple partner agencies that include the NSA, CIA, IRS, FBI, and DHS, utilize intercepted data and pass that information to police as a pretext for a traffic stop (“pull over this car, at this time and location”). The problem is that the DEA wants the program to be completely secret, and that sometimes means withholding information from prosecutors and judges. This includes how the investigation even began: the tip that started the chain of events. Sometimes the DEA claims that an informant provided the tip, even in cases where the tip originates via this program.
And therein lies the problem, that to mislead prosecutors and judges for the sake of operational secrecy is unconstitutional and has the unfortunate effect of making a suspect’s defense more difficult, as one side has more access to information than the other, and that information can’t be contested in court.
“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.
It’s curious what other DEA agents would think of the analogy, comparing DEA agents using this scheme with money launderers. As an aside, I like that Mr Selander is now a member of a group that is trying to liberalize drug policy in this country, not least because it’s absurd that so many people (disproportionately blacks, Hispanics, or other “undesirables” as deemed by our system of justice) are jailed because of pot.
Regarding the use of these tips absent disclosure of the origin:
“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.”
Note the part toward the end of the article: most suspects make deals and never go to trial, and so the clandestine program doesn’t come to light in those cases. My main concern isn’t the program itself, but the context. The program seems to work, if a 60% success rate is any indication. The concern is law enforcement itself. The law has increasing discretion and resources at its disposal, something that’s a good thing in catching real criminals but that also catches non-criminals, or petty criminals who commit trivial crimes that hurt no one, but who then face years or decades in prison. What we need isn’t just protection from criminals; we also need protection from police, who in many cases are the victimizers. With this latter protection eroding, it concerns me that police are getting more and more power and resources.
The program works; it’s the system itself that is damaged and in need of repair.
EDIT – More perspective on the secretive DEA program – basically negative, questioning fairness and constitutionality.