Specifically the Shiffman-Cooke report said:
"...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..."The "recreation" of a trail, is, apparently, a cover-up of a portion of an investigation in order to hide how the investigation originated, specifically to hide sources or covert operatives, and covert operations.
Here's how the Reuters report described the procedure:
"...'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...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..."This, according to Shiffman and Cooke is called "parallel construction," and "...the process is kept secret to protect sources and investigative methods..." The description of the program provided to Reuters is striking:
"...'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..."And that's the clincher. It "may" be unconstitutional.
Again, the justification for this program is that it keeps confidential sources and operations from being revealed, but the procedure is called into question when considering the integrity of Justice in a trial, and the Justice system itself. It calls into question the legitimacy of a prosecution that is witholding evidence from the defense of someone accused of a crime(s). This works as long as the accused is actually guilty of the crime. However, what if the accused is innocent? That defendant then does not have access to a full defense, and may be found guilty due to evidence occluded or ommitted or unavailable because of this procedure.
Here's the initial Reuter report published on Monday....
Today in a follow up report, this time by John Shiffman and David Ingram, Reuters has more details about the "...U.S. Drug Enforcement Administration program that feeds tips to federal agents and then instructs them to alter the investigative trail were published in a manual used by agents of the Internal Revenue Service for two years..." According to the report the: "...practice of recreating the investigative trail, highly criticized by former prosecutors and defense lawyers after Reuters reported it this week, is now under review by the Justice Department. Two high-profile Republicans have also raised questions about the procedure..." Their objections are to revelations in:
"...A 350-word entry in the Internal Revenue Manual [that] instructed agents of the U.S. tax agency to omit any reference to tips supplied by the DEA's Special Operations Division, especially from affidavits, court proceedings or investigative files. The entry was published and posted online in 2005 and 2006, and was removed in early 2007. The IRS is among two dozen arms of the government working with the Special Operations Division, including the Federal Bureau of Investigation, the National Security Agency and the Central Intelligence Agency..."Schiffman and Ingram describe further the function of the program:
"...IRS agents are directed to use the tips to find new, 'independent' evidence: 'Usable information regarding these leads must be developed from such independent sources as investigative files, subscriber and toll requests, physical surveillance, wire intercepts, and confidential source information. Information obtained from SOD in response to a search or query request cannot be used directly in any investigation (i.e. cannot be used in affidavits, court proceedings or maintained in investigative files).'..."And there's also this curious quip:
"...the Special Operations Division of the DEA funnels information from overseas NSA intercepts, domestic wiretaps, informants and a large DEA database of telephone records to authorities nationwide to help them launch criminal investigations of Americans. The DEA phone database is distinct from a NSA database disclosed by former NSA contractor Edward Snowden.
Reuters provides details of differences between the two programs HERE ...
Leading the charge on this issue: House Intelligence Committee Chairman Mike Rogers, R-Michigan, Sen. Rand Paul, R-Kentucky, a member of the Homeland Security and Government Affairs Committee.
Here are the quotes, according to Reuters:
Rogers: "If they're recreating a trail, that's wrong and we're going to have to do something about it...We're working with the DEA and intelligence organizations to try to find out exactly what that story is."
Rand Paul: "National security is one of government's most important functions. So is protecting individual liberty...If the Constitution still has any sway, a government that is constantly overreaching on security while completely neglecting liberty is in grave violation of our founding doctrine."
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