This is probably referring to "SOD tips" or "SOD tip-offs", where intelligence-community information is "laundered" through a source that provides a tip to investigators, as discussed in this Reuters article from last year:
Although very interesting the Special Operations Division (SOD) is probably not what was redacted:
1) It is a legalization methodology not a unit of the DEA. The other items mentioned FISA, CIPA and parallel construction can all be used to make illegally obtained information legally usable in court.
2) It is a word/phrase that is approx 12 letters long. "SOD" and "Special Operations Division" do not fit and while "SOD tip-offs" fits it does not sound like terminology the DEA would use.
I suspect it is either some executive order[1], presidential directive[2], presidential finding[3], secret memo or some other secret bullshit they just made up and that lawyers at the DOJ and White House (and perhaps some judge) decided was both constitutional and could be kept secret. I'm thinking along the lines of Obama's kill list[4] and Bush's torture memos[5].
Man, if I were creating the rules to govern a UTOPIA - I mean a freaking UTOPIA - and I could choose any rules I wanted.
And I wanted to make them durable. I mean DURABLE. Lasting hundreds of years. Thousands even.
You know what I would do? I would make some rules that were even stronger than whatever laws were in effect at a given time. And I would let THE PEOPLE choose whatever transient laws they wanted.
These even stronger rules - would protect people from choosing shitty transient ones.
Well, turns out philosophers DID get this chance.
And, when it came time to write these strong rules - and they wrote ,
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall NOT be violated."
To protect their citizens from whatever government was in effect at the time...
.... the pen lingered....
... and lingered ...
and lingered.
And through no pressure. No outside force except the desire to create a utopia.
...started writing "but".
Why? Why? Why?
Why not just write "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall NOT be violated"?
Think about this, and perhaps you might start to see this world in a slightly better light.
Trying to understand your point. Do you mean the phrase "but upon probable cause"? And if so, do you mean that it would have been a better utopia if searches were not allowed even with probable cause?
Probable cause is not required for searches. Probable cause is required for a warrant to issue. Searches must be reasonable. Searches without a warrant are simply presumptively unreasonable.
Given that is already in there why add the additional caveat that then allows unreasonable searches? Surely reasonable searches are all we really need.
"unreasonable" is the key to modern warrantless searches, not the "but". Also, the but is after "and no warrant shall issue". These clauses are read mostly separately in current interpretation.
Heh, laundering evidence. This sounds a lot like what News of the World did with their phone "hacking" scandal - they'd illegally break into peoples voicemail, record it, then stuff the recording in an envelope and mail it to their receptionist so they could claim it was an anonymous source.
As far as I can tell, in parallel construction they use illegitimate cause or illegal evidence and ensuing investigations to construct a hypothetical way that they could have legitimately found cause or evidence, and then they lie and say that they did it the legal way.
With SOD tips, they are getting tips from illegal sources and using them for cause, and simply lying and saying that they got the tip from somewhere else, like an anonymous informant, because there is no legal way they could have known. It's just a step away from hiring actors as witnesses, which I'm thinking is not very far away.
In both cases, it helps to be clear about terminology.
You can't simply introduce evidence and conceal its source from a judge; that evidence would be excluded from trial. You also can't introduce evidence that chains back to excludable evidence.
But the products of NSA/FBI fusion (or "SOD", or whatever you want to call it) are never introduced as evidence, either directly or as cause to authorize a search. That's why the process is called "parallel construction": it is the legal opinion of the DOJ that you can use excludable evidence as intelligence so long as you then build a case from probable cause (either for a warrant or arrest) that doesn't stem from that intelligence.
In other words, you can exploit the NSA to put a detective in the right place at the right time. But the detective will need to observe you doing something that gives them probable cause for a search: you'll need to, say, do an open-air drug transaction, or get stopped for running a red light and then have drugs plainly visible in your car (or have a dog authorize the search, which is plainly problematic).
The way parallel construction works, the information coming from parallel construction is never brought to court. This bothers criminal defense attorneys and civil rights advocates. It has never been the case that prosecutors are required to furnish all the information they collect on a suspect (though they are required to furnish any potentially exculpatory information, per Brady v. Maryland). But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
But the detective will need to observe you doing something that gives them probable cause for a search
Alternatively, once the detective has been "informed" that the suspect is already known to be guilty, and thus that their organization wants this person arrested and off the street, that detective may feel comfortable making statements and performing acts that they otherwise would not. In the simplest form: lie about it, but with clear conscience because you are doing so to convict a known criminal.
Anecdotal, but I recently spent my jury duty as foreman for a case where the police claimed that the defendant was transporting a legally-owned handgun in an illegal manner (loaded and in an unlocked case). For all I know, the defendant we unanimously found "not guilty" may have been correctly known to be on his way to commit a murder. But all of us on the jury concluded that the police who testified were simply lying about too many of the major details to be trusted.
And I don't mean poor recall: this was flat-out perjury that we felt contradicted the police's own photographic evidence. While my faith in the system is really shaken, I'd at least like to believe that the detectives felt they were doing "the right thing" by trying to put this person in jail. But it certainly gives me cause to worry about the side-effects of parallel construction. Given a preconception of guilt, how much farther will the local authorities feel comfortable "bending the rules" in ways that pervert the system to their advantage?
This isn't hard. The constitution says the order is
probable cause -> search
Parallel construction is
search -> probable cause -> search again
The first search is blatantly illegal according to the plain language of the constitution. No fancy lawyering needed. That they lie about the origin of the probable cause is icing on the illegal cake.
There's a difficult semantic problem that comes up in these conversations, how to explain...
Publishing the AACS key as Wikipedia does [1] is, as you would say, "blatantly illegal according to the plain language [of the law]. No fancy lawyering needed." In spite of the fact that is "blatantly illegal", they do it, and nothing bad happens. How can this be?
Well, the reason is because "blatantly illegal" is not a magic word that prevents people from doing things. It's not a technical measure that stops you in your tracks.
"Illegal" simply means that someone has the option to get a specific legal remedy from you. And whether that somebody is interested in exercising that remedy or whether the remedy is very good are completely different questions.
It is "blatantly illegal" to search your house but that doesn't stop the DEA, your ex-girlfriend, or the burglar down the street from doing so. The only operative question is, "what is the remedy?" And on this question the constitution is "blatantly" silent.
In the illegal search situation legal precedent has decided the remedy is that you cannot use the evidence you collect illegally in court. This is called the "fruit of the poisonous tree" doctrine.
Now maybe you think that remedy is insufficient, that there should be a fine or we should put them in jail. That is a perfectly reasonable view. But "this is blatantly illegal under the constitution" is not an argument that competently advances that position for a harsher remedy. Everybody already agrees that illegal searches are illegal; that is true by definition. Not everybody agrees about what the remedy should be.
Sure, that's why they hide all their shenanigans under national security secrecy. To make it impossible to challenge and for a judge to make a determination of legality. Thereby circumventing the system of checks and balances and tearing another hole in the constitution.
No. That's serial construction. To work, the process must defensibly be:
search -> [intelligence]
probable cause -> search -> [evidence]
Think of parallel construction the way engineers think about clean-room reimplementations, for instance of the old Phoenix BIOS. The probable cause that authorizes the evidence search has to be de novo; LEO's can't search you simply because the NSA tipped them off.
Right, they pretend it's parallel when in fact it's serial. The first illegal search is what generates the lead, no matter what secret rationale they come up with.
NSA surveillance of a smuggler in Mexico produces the name of Joe Schmoe in El Paso (for concreteness let's say the intercept is "Joe Schmoe will distribute our cocaine, as always"). The DEA gets tipped, Joe Schmoe's name goes up on a tack board and he's put under surveillance. A case may be built from there using classical police methods.
> Parallel construction is not that. You're describing simple perjury.
The only difference between "parallel construction" and "simple perjury" is that the people testifying aren't, if parallel construction is done "correctly", even aware that it has been done, and thus aren't committing perjury (though the agency doing parallel construction is committing a massive fraud on the courts.)
> But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
The argument against parallel construction is simpler than that: The exclusionary rule exists not because guilty defendants have a right to go free, but rather to deprive law enforcement of the benefit of an unlawful search. Allowing parallel construction would impermissibly allow law enforcement to benefit from the unlawful search.
> It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
The distinction is that evidence from a CI would be admissible in its own right. Further evidence that it leads to wouldn't be the fruit of the poisonous tree.
The trouble seems to be that the exclusionary rule breaks in the absence of total transparency from law enforcement. The exclusionary rule exists to remove the incentive for law enforcement to conduct unconstitutional searches. If law enforcement doesn't have to disclose all their sources, even if parallel construction from poisonous evidence was nominally prohibited, defendants wouldn't be able to prove it when it happened. It would reintroduce the incentive for law enforcement to conduct unconstitutional searches and thereby make the exclusionary rule insufficient. This is a hard problem, although maybe requiring a high level of transparency and disclosure from law enforcement would be beneficial in general.
No, evidence from a CI is not admissible when the CI is not revealed to the court. I'm not saying parallel construction applies to every case involving a CI; I'm saying it applies to cases made from CIs who remain sources after the case is brought, and are thus concealed from the court and (more importantly) the defendant.
Again, the distinction is that the use of the CI is not a violation of the defendant's constitutional rights. Hiding the existence of the CI doesn't have the effect of hiding a constitutional violation by law enforcement.
Just to add the relevant terms of art to this post for people to google if they're interested in the legal doctrine: "exclusionary rule", "fruit of the poisonous tree", "independent source", "inevitable discovery", "attenuation", "good faith reliance", and "standing".
And the accumulation of these concepts and precedents have added up to the current, nearly-legal, total surveillance state that we're developing into; a court decision, a failure to allow a challenge to a court decision, a secret interpretation by an executive branch counsel that is made illegal to either see or challenge but the executive operates as if it's established law...
The problem isn't that there isn't a body of precedent that allows a lot of this garbage, it's that those precedents tend to be equally horrible and biased towards the powerful.
edit: Just saying:) Not trying to be antagonistic. Just venting.
>you'll need to, say, do an open-air drug transaction, or get stopped for running a red light and then have drugs plainly visible in your car (or have a dog authorize the search, which is plainly problematic).
Or be a totally innocent person who is unknowingly transporting contraband and say, "of course I don't mind, search my car, officer."
Why would anyone willingly give up their protections under the law? Of course, if you say "no", they'll just get their trained dogs to give them "permission".
>Why would anyone willingly give up their protections under the law?
* Implied or implicit threats from LEO
* Unwarranted trust in law enforcement
* Belief that they are making the most efficient choice.
* Ignorance of their rights
* etc.
Assuming the people they claim are the informants actually exist, and are not complete fabrications, then really the only difference between these 'informants' operating in this capacity and actors are what guilds they do or do not belong to.
There's no implication that the source is necessarily illegal.
Let's imagine a more traditional wiretap scenario. Say the police are gathering information on a major drug kingpin, and they need more information from him.
But they want to bring in one of his lieutenants because of information they've found on the wiretap. It'd make plenty of sense to find a way to bust the lieutenant without making the existence of the wiretap public.
It's not really about "laundering" evidence, in this case. Though it could very easily be used that way, since the actual source of the actions is hidden. The original wiretap could have been perfectly legal.
You can be 100% sure these things "pan out" in the sense of resulting in convictions, because a lot of people are going to plea-bargain when confronted by the DEA, whether they are actually guilty or not.
Essentially, once you have poisoned the actual trial process (and this shows just how poisoned it is), no statistics about "how effective this is" are going to mean anything. After all, I'm sure some DEA agents know they're convicting innocent people I'm sure others have blanket belief in the guilt of many innocent people. It's kind of a truism - once you abandon objective, unbiased inquiry, it's gone.
To the best of my (limited) understanding, if you pull someone over because of a 'tip' and then search them, absent some other cause, the source of the tip needs to be documented to the court. You can't generally search people based on anonymous tips. (It's a little more complicated than that, of course: http://www.casebriefs.com/blog/law/criminal-procedure/crimin...)
Right, and the reason SOD tips work is that they don't need to be anonymous--as with laundering money, there's a legitimate front that the information is passed to (e.g. some known minor criminal who can be leaned on), which can then be cited as its source.
It's one thing for an SOD tip to put a cop at the right place at the right time to observe a transaction or pull over a car driven by a guy with warrants out.
It's another thing entirely for an SOD tip to be the totality of probable cause, and for the police to lie to prosecutors or prosecutors lie to a judge about it.
The latter case sounds much less likely to me, given the effort these slide decks show of LEOs trying to stay within the confines of the law (I don't happen to agree with where those confines are, but the evidence we have shows the DOJ paying at least lip service to it).
Unbelievable. Yes, we know they do this. We had this conversation a couple months ago and it was attached to an article describing exactly what they do. They don't just put cops "in the right place at the right time", which is your favorite and flawed analogy. They tell cops to pull someone over at the right place and the right time and make up a reason to pull them over.
This should be illegal. It should be illegal even if something perfectly analogous has existed in that past. The extensiveness of a technique and the power that it allows matters.
I'm not going to go back and find this conversation because I shouldn't have to. It's not my job to follow you around and make sure you are being intellectually honest. It's pretty frustrating that someone as well-respected as you are here, and someone who is such a prolific poster, refuses to update his model of the world when new information is introduced into it. You are mind-bogglingly tenacious in trying to quell the outrage over civil liberties abuses and apparently go as far as selectively forgetting relevant information.
No, that's not your job. It's weird that you think it is.
Could you cite a link to the case you're thinking of, where evidence from SIGINT surveillance was used directly as probable cause for a search?
Also, could you yourself update your mental model of what's happening on HN? You obviously think I'm a tenacious foe of civil liberties causes. The opposite is true. I've done as much in the real world to support civil liberties causes as most anyone else on HN has. I contribute to candidates who I believe support a strong fourth amendment. I've canvassed for candidates like them. I donate to civil liberties causes.
What I have a problem with are batshit conspiracy theories, which is something HN is rife with. People should stop pretending that conspiracy theories are helpful when they're of the right valence. They aren't.
If you've actually followed me around HN, you know that I'm not at all unwilling to acknowledge when I'm wrong, as a cursory look at HNSearch will show. So, instead of yelling at me, why not show where I'm wrong?
Personal anecdote: riding as passenger in friend's vehicle, LEO pulls over, friend says 'oh, not again.' LEO advises '... license plate lamp out ...' Friend says, 'no it isn't,' exits vehicle, examines lamp -- in good working order. LEO says, 'must have made a mistake'. Friend says, 'no, I have a name similar to someone with an active warrant', cop says 'uh, huh'. Runs license. Free to go.
Lawful stop? No. Remedy? No.
The core issue is that the judiciary's (and your) presumption of reliable and trustworthy law enforcement behavior is not valid. This is a LEO 'company culture' problem which has always existed (formerly a racial problem, but now everyone's problem now that we're not doing that any more).
I'm not sure what the answer is, other than people need to learn what has happened in the ghetto for the last 200 years, then accept that they're next.
I'm confused about the exact details here -- does he believe there is an auto plate tracker which shows the name the vehicle is registered to (him) which gets a false-positive on a secondary search for name? It would seem more reasonable to have a list of suspects/warrants, and then a list of their own vehicles, and just pop it up then. You'd also want to find cars the suspect was known to drive, since it's pretty common for a "criminal" to register his property in someone else's name to protect from seizure.
I think it would be more plausible that he was profiled for race/location/type of vehicle/etc., rather than his name, but maybe there are more specifics?
Yes, I just don't see how an automated license plate scanner would get confused by a similar name -- I assume those have access to DMV database, so it would pull up 5DES800 and see it's registered to Marcus Walters of 1 Crypto Way who has 5 open warrants for overthrowing the state; it wouldn't say "this is a car registered to Marcus Walter" which the officer would then confuse with the open warrant for Marcus WalterS.
I suppose it's possible the ALPS could be configured to just ID every single car, and the officer had in his mind (or using another system) the name of a specific suspect who he matched (erroneously) to the ALPS results of the victim here.
I don't think there are documented cases of the SOD information being used as probable cause (in the sense that it was presented in court as justification for a search). Much of the point of the program is to avoid that happening.
It seems likely there are cases of the SOD information being used to target people for abusive traffic stops (the agent in the Reuters article says And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it).
With the tactics being top-secret I doubt there would be a lot of documented cases of it happening that could prove it exists - that would kind of defat the whole purpose of it being secret. It would probably take another Snowden to get any evidence on it.
>It would probably take another Snowden to get any evidence on it.
And I think that the possibility of another Snowden for this requires that there be some functioning mechanism by which requests to do this are centrally cleared, or even recorded, which I don't think is a sure thing. I see it just as likely that different agencies and departments within them are operating under a lot of different standing blanket orders in the form of legal interpretations, and that once a parallel construction is created, the records of any alternate explanation are destroyed (or were never created.)
Not necessarily - some policeman or policewoman doing this or seeing her peers do that can one day wake up and say - I had enough with violating rights of Americans, I'm just going to document everything we're doing that is wrong and then publish it, and be whatever it will be. Fat chance, I know, but who thought it could happen in NSA before it did? You never know. And after that happens, of course higher-ups will deny that happened, but once the cat is out of the bag and the attention of the society has been captured that would be a different story altogether than now. It would move from "those crazy libertarians are breaking out their tinfoil hats again" to "omg omg police is really doing it right under our noses! It could even happen to me!"
For once, somebody could get and publish all those training manuals - unredacted, with all the juicy details. With it being this entrenched, something must be written down - you can't rule system this vast on lore alone.
LEOs and DAs have no problem paying for false testimony, whether it's to cover SOD or not. They can use taxpayer money and there's no real repercussions for getting caught.
Innocent people are routinely murdered by police in my area, with no justification or repercussion. The lucky ones who survive get million dollar settlements in taxpayer money. The cops never face serious punishment. We had a group of LEOs literally beat a defenseless man to death, captured in full audio and video, and they got off scot free. Look up Kelly Thomas.
I know that police here in Australia will lie about where a tip came from, including to a Judge -- solely because one of my best friends is a cop and we've discussed it before. The thing is, that could be an isolated incident, I've no idea whether that happens a lot. That said, yesterday there was the article on HN about the Kings County police officer who indeed tried to lie about what had actually transpired, only he was caught out and fired(! Holy crap how good is that). I think none of us have enough info to really know what goes on, so I personally withhold my judgement about it in general, unless in a specific case I have seen credible info to lead me to believe otherwise. Hard topic, tbh.
If the 'tip' is "it sounds like my neighbor is gonna kill his girlfriend or something", and police enter and see contraband, is that admissible?
Are "drug dogs" keyed to a specific substance? Is the cause given by a drug dog alert enough to conduct a general search and everything found admitted as evidence?
You can't search a car on a traffic stop without probable cause of an actual crime.
However, if your traffic stop is for a moving offense that warrants arrest (DUI, for instance, or reckless driving), all bets are off, because the police can do intrusive searches incident to an arrest.
Also, if you're stopped for a moving violation and either authorize a search, or have evidence of probable cause in plain view (for instance, a bag of weed in the passenger seat), all bets are again off.
And to get this power, all the dog has to do is to pass a training program. That's like giving anybody who has a "diploma" from a "prestigious Internet university" powers to arrest and imprison. Only in this case you can't even argue with them because how can you argue with a dog? A dog barked, thus search is authorized.
Now let's think - can there be any ways to make the dog bark? If somebody does that in order to make foolproof instant probable-cause-on-demand, what would be his risks that the dog will grow a conscience and tell everybody he's been lying for years?
Worse, from what I recall there are actual scientific studies out there demonstrating that many of these dogs do indeed bark when their handler thinks there are drugs rather than when they actually smell them.
The DEA is evil. They operate under a pretense of "reducing harm" yet are actively trying to create more crime to validate their existence. In the course of doing so they create far more harm than they ostensibly prevent.
To be fair, I think you're blaming the wrong agency here. The Drug Enforcement Administration is going to do everything it can to prosecute as many drug violations as they can. That's their charter.
You should instead convince legislators to make drugs less illegal, and use the police resources for something else. If the Preventing Kids From Being Kidnapped Administration was as well-funded as the DEA, these agents would be coming up with clever ways to catch predators instead.
Yes, and the charter you just gave is is evil. Fundamentally evil. Pure evil even.
"...do everything it can to prosecute as many drug violations as they can." That makes no mention of improving society. Or protecting society. Or providing valuable services to the citizens of society. Nor does it even make mention of the validity of the violations in question. Who cares if the violations in question are actually true. Truth and justice have nothing to do with the charter!
So no, the DEA deserves to be perfectly square in the crosshairs of blame. Along with many other agencies and governmental organizations.
It's called the "Drug Enforcement Agency." It's sole purpose is to enforce drug laws, not to make drug policy. Like other agencies, it was created to enforce the policies enacted by politicians (Congresscritters and Senators). Blame the politicians, not the agencies.
Pardon my language, but fuck that. Members of the DEA are responsible for their own actions with respect to how they uphold those laws. They hold prosecutorial discretion and they may be rightly judged for how they exercise that privilege. Some judge may have ruled parallel construction, amongst other things, as legal but that doesn't mean it's moral or ethical.
I'm happy to blame congress and others for creating the terrible policy, but that doesn't let the DEA off the hook for the practices they're describing here.
An agency or officer that's justifying their actions as "enforcing the law" had better be talking about the every bit as important and legitimate laws that limit their activities and powers, as well as the criminal statutes.
Otherwise, they're doing something else besides law enforcement.
It's called the "Rape Creation Agency" It's sole purpose is to rape people, not to make rape policy. Like other agencies, it was created to enforce the policies enacted by politicians (Congresscritters and Senators). Blame the politicians, not the agencies.
I know it seems like a straw man but I just wish to show that your reasoning isn't quite sound.
> It's called "Vernichtungslager" / "Concentration Camps", their whole purpose is the legal killing of undesirables, you're really venting your anger at the wrong agency here. They're just doing the job they were hired for.
No, not the laws around drugs right now — the concept of laws around drugs. Because if it's just the current laws that are problematic, then it is indeed the laws that are the problem, not the agency.
This is not comparable to a hypothetical Rape Creation Agency, which is problematic in and of itself because we do not approve of rape under any circumstances and there are no laws that could be changed to make such an agency acceptable. The analogy is not valid for making that particular point.
The drug laws are Jim Crow laws, version 2.0 (now with added resiliency!) They were created for exactly the same racist reasons. The laws are evil, and those who voluntarily sign on to enforce them are evil.
The DEA isn't staffed by people who were drafted, they all chose to involve themselves. Each individual member of the DEA is free to refuse to participate, but they instead choose to participate. We can and should judge them for that.
It has everything to do with what you are talking about.
You said: "Because if it's just the current laws that are problematic, then it is indeed the laws that are the problem, not the agency."
But it isn't just the laws that are problematic. The agency itself is problematic (being a construct that exists only because of the problematic laws), and the people who voluntarily work for the agency deserve every ounce of criticism that they get. There is no sense in which the agency is not problematic, both it as an abstract concept and it as a collection of free individuals are part of the problem.
Neither the agency nor the people that comprise are blameless just because they did not write the laws.
> we do not approve of rape under any circumstances
In the U.S. people actively encourage rape in prison as a form of revenge, even an inherent part of incarceration. Especially if the person being incarcerated did something that fits the common definition of "wrong", like robbing someone at gunpoint, carjacking, murder, drug trafficking, or rape. How much sympathy do people usually have for a rapist being raped in prison? Or a child molester?
That's approval waiting for a chance to surface, because someone "deserved it", and it's not even close to being isolated to prisoners or criminals either, that attitude is horrifically common.
This would be empty theorizing. May be you can create an agency and call it Rape Creation Agency and still have laws that would govern it that would not be evil (e.g., for example, for its agents to never do anything, never show up at work and just collect salaries - that'd be actually less evil than the substantial part of currently existing government agencies). But that's a theoretical exercise.
Drug War, on the contrary, is very practical evil existing right now in America. And no amount of theory would change that until the laws that create that evil would be removed and replaced with ones that are not evil.
I don't think you understand logic, the law, or modern society.
Rape is illegal, hence, the legislative branch could not and would not create a "rape agency" to rape people without also making rape legal. Obviously, if they were to do that, the problem is the politicians would make rape legal.
Our duly elected representatives made laws prohibiting drugs, and an agency to enforce those laws. We've had many chances to replace those representatives in the decades since, and have chosen not to replace them with representatives who would remove those laws or water down the enforcement provisions.
Is there a difference between morality and the law?
If our "duly elected representatives" made laws that made rape legal, would that be moral?
If there are 100 people in a room and 51 people vote for the other 49 to become their lunch, is that ok?
What if they made laws that made killing certain ethic groups legal, would that be moral?
What if both of the candidates in a race are for the drug war and I don't have a choice?
Does voting really imply consent? If it does, what if the candidate was lying during the campaign? What if he/she changed their mind about an issue? Do I still imply consent?
You don't even need to bring the prohibition discussion into this. The problem with the DEA isn't their mission or charter, it's that they have convinced themselves along the way that to make an impact, they need to become an intelligence agency and support certain cartels, funnel weapons to them, turn a blind eye on their operations in the USA - this is where they are creating extra harm.
They believe they are the genius third party that is playing cartels against each other, when really the cartel soldiers don't stop working over the weekend and will happily take whatever support the DEA has to offer while shielding the upper echelons.
"The problem with the DEA isn't their mission or charter"
On the contrary, that's the only problem. Once you have an agency mission to violate human rights and the Constitution, all the abuses follow directly.
The problem isn't corrupt behavior from the DEA and drug police. The problem is that prohibition is illegal and unconstitutional and inherently contrary to basic human rights.
You can't create and run an operation to deprive people of their agency, choices, and rights and then conduct that operation in a decent, honest, and civilized manner. That would be self-contradictory; everything the operation does is wrong; doing it well can't make it right.
In fact, the abuses documented in op and widely elsewhere are really not a part of the problem at all. If we had an agency that read people's minds and imprisoned them if they did not love big brother enough, then failures of the mind reading device would be a benefit because at least some people would retain freedom of conscience by accident. Likewise, every time the DEA or drug police kill and imprison innocents, it's good for the country. They would be killing and imprisoning someone no matter what and at least when the victims are innocent, someone out there is retaining his fundamental right to choose what substances to use or not use inside his own body.
> To be fair, I think you're blaming the wrong agency here.
Stop kicking the can. The DEA is part of the problem in that any organization's goal is self-propogation and continued existence to benefit it's membership.
That they were given a corrupt charter doesn't mean they're innocent actors. They are part and parcel of the security state combined with private interests, corrupt legislators, bribed judges and other agencies whose mission has strayed from public benefit to lining their own pockets.
In fact, I wouldn't doubt that given their power, they are increasingly targeted/infiltrated by the very criminal interests they're trying to control - meaning their purpose is skewed for vendetta resolution and clearing out markets for drug cartels (note: HSBC was caught laundering money for the cartels, why would the DEA be less corruptible?).
Well, they may actually believe their propaganda, which just means that their authority (to influence drug policy) extends beyond the bounds of their competence.
And, in turn, the executive branch's job is to enforce the law. Could the current administration do more to scale back the War on Drugs? Possibly. Probably, even. But they are taking some measures, however small. E.g.: [1]
I don't think they are required by law to employ parallel construction, and whatever the hell this redacted technique is. At a certain point even people in the executive branch become responsible for their own actions and decisions.
Executive branch is guilty of enforcing the evil laws, but these evil laws exist and are made more evil (e.g. mandatory sentences, theory of "precursors", etc.) by the legislative branch. So everybody is guilty here.
It seems pretty clear that the culture at DEA is also to blame; there are plenty of other areas of law enforcement which is comparatively reasonable.
The severity of the punishments, and the level of funding, is the fault of congress, but a well-funded DEA which stuck strictly to the law would be a lot better than what we have now. Part of it is that drug smuggling gangs are some of the worst criminals, and putting police agencies in constant contact with them seems to corrupt them (Nietzsche...).
That's what makes them evil. The fact that the evil has been spawned by the act of Congress doesn't make it less evil. It just makes Congress responsible for doing evil.
While I agree in principle I would be remiss if I didn't say that the ATF is much worse. I mean the DEA doesn't go around sniping kids and all. For those who are curious or unaware read up on Ruby Ridge. Don't forget their handy work in Waco either...
Drug enforcement agencies are the Western version of religious police.
Their only purpose is to enforce fundamentalist lifestyle values upon the general population. It has nothing to do with maintaining safety, order or justice. These agencies do not belong in a free society. I'm not a libertarian, far from it, but for some government activities there is absolutely no justification.
Hmm... addiction makes it so you can't really trust people's decisions surrounding their own health and having lots of addicts looking to get their next fix at any cost means lots of petty crimes.
Disease and crime are hugely damaging to society. You might (in internet-"libertarian" fashion) decide that people should be free to damage themselves, and that health insurance providers should be free not to cover those people (and you'd have a completely logical rationale for being a selfish asshole), but how do you account for the additional costs to the security infrastructure from the crime?
With socialized security infrastructure (state run police and prisons) everyone pays for the damage that drug manufacturers and importers are doing to society. Without it (private security/insurance) you could decide that premiums for those services will just follow the increase in drug-related crimes in a given locality, but then you've completely given up on solving the root causes, and we'd just have the same kind of security profiteering surrounding drug use we see now, minus a whole lot of effectiveness.
Do all of the people who resist addiction and want to have a decent level of security in their lives and possessions move to gated communities? What about the ones who are not so privileged? Do we just give up on entire neighborhoods of addicts and those too poor to leave.
Certainly, prosecuting users and low-level dealers with hugely inflated mandatory minimums is a crime against them and their families. Certainly, criminalizing production of tobacco, alcohol, or cannabis inhibits the potential for economy surrounding them without much benefit to society.
Is the value of preventing the import and production of hard and/or impure drugs like methamphetamine and the damage that their use does to civilization not as certain?
It seems pretty obvious to me that having social infrastructure surrounding drug laws and their enforcement, and treatment for addicts is hugely beneficial - society benefits as a whole so everyone should pay, and there is definitely potential for benefit greater than the costs (I suspect that even as bad as we are screwing this up now, we are past the break-even). It seems pretty obvious to me that we must disconnect sentencing from politics by making mandatory minimums unconstitutional - judges and juries must be free to sentence as they see fit. And it seems pretty obvious to me that we must refocus law enforcement on the sources of drugs, not the users or dealers - who are mostly victims of social effects and mental behaviors which are outside their control (this is very likely to mean reduced spending in total surrounding drug law enforcement).
Some of the currently illegal substances are not physiologically addictive and are minimally harmful (if at all). There are hundreds of peer reviewed papers that show this. Researchers have also documented some beneficial outcomes through use as therapeutic tools . There is no sensible reason for these substances to be schedule I. Marijuana, LSD, and psilocybin ("magic mushrooms") are three of the more well known examples of this.
Additionally, your depiction of the societal effects of drugs is pretty ridiculous ("if drugs are legalized does everyone that avoids addiction need to move to a gated community for safety?"). Upon legaliztion, those who suffer from addiction could receve proper help much more easily, and long term outcome studies could be conducted far more effectively. This, coupled with regulation (which would foster safety standards and quality control), would result in greatly reduced negative societal impacts. Also, drugs which have been proven to have very little benefit and great potential for harm (meth, heroin, pcp, crack, etc) could remain illegal..
> Some of the currently illegal substances are not physiologically addictive and are minimally harmful (if at all). There are hundreds of peer reviewed papers that show this.
I'm not sure what I wrote that makes you think I'm not aware of this. I definitely think that most drug's we're currently enforcing should not be scheduled how they are.
That said, have you seen what percent of crime in low-mid income neighborhoods is meth-related? At least around here, it's not very pretty, and I definitely will continue to support putting behind bars the folks that produce and import those types of substances, and damage communities for profit.
a) The majority of recreational drug users are not addicts. There are many more aspects to addiction than the mere substance.
b) The majority of recreational drug users are productive members of society. That includes many addicts.
c) Despite the criminalization, drugs are readily available in every Western country, and have been for generations. The negative side-effects you're trying to scare people with would already be in full swing.
Instead, we only see escalating negative effects in countries that wage a "war on drugs". In countries with liberal drug policies, the impact of drug use on crime and healthcare is so negligible it's not even an issue anymore. Even in the current climate where every instance of a small minority leaning disproportionally on social security or healthcare is a major issue.
The number of dysfunctional drug addicts in an otherwise well functioning society is extremely marginal, a load that society can easily handle, especially if the entire socially destructive and expensive apparatus of drug enforcement is disbanded.
I'm not even going to bother to score the obvious points regarding alcohol.
I don't disagree much with what you're saying here. Mostly only that I don't think that the effects of say meth are in "full swing".
I agree that most drugs that are currently criminalized should probably not be. I believe that use and addiction (for any substance) should not be criminalized, as that only compounds the problems users have, does not help them recover or contribute.
Almost exclusively, all of these nonsense "tactics" have been permitted due to the war on drugs. The rights of the public have been trampled, and it's disgusting.
Used to have? You're conflating a lot of very different things here. You may consider plain clothes officers to be "extremely unprofessional", but how does that infringe upon the rights of Americans? Plain clothes officers date way back to before the war on drugs, as do paid informants and undercover officers.
Much of what you're railing against is a fundamental part of law enforcement. If a tool is being misused you probably wouldn't ban it entirely. You are advocating a world in which high level organized crime would have a much, much easier time. I challenge you to find a RICO case that didn't involve paid informants, a wiretap, or an undercover officer.
The question we should be asking should be how do we stop these tools from being blatantly mis-used. It is absolutely wrong for the DEA to manipulate evidence so as to hide the use of surveillance from the defense. Does that make warranted surveillance on, say, a criminal syndicate wrong in the first place?
You are advocating a world in which high level organized crime would have a much, much easier time.
Yes, that's an unfortunate side effect of living in a free and open society which respects the freedom and innate rights of the individual which compose it.
Until organised crime infiltrate the government and they start ignoring the law. See the FBI under Hoover.
Is this an argument for more government, or less?
Plus organised crime hardly enables a free and open society. Especially as a free and open society revolves around a viable rule of law.
"Rule of Law" is one thing, and is largely desirable, yes. Capricious and arbitrary regulations that try (vainly) to pre-empt a crime that might not happen, and which infringe individual liberties in the process, are quite another thing.
> The courts need to get their heads out of the sand and restore the rights Americans used to have:
I'm not sure what point in America's history we had all those rights. Plainclothes officers are quite old. There wasn't even a police/sheriff badge in most of the US until at least the mid-19th century.
Undercover agents came about around prohibition (unless you consider spies to be undercover agents in which case, we've always had them).
Wiretaps certainly predate the war on drugs. In fact, they became so widespread during WW1 that they were temporarily outlawed.
Entrapment wasn't even a defense until the early 20th century.
Dogs have been used as probable cause to search well before America existed - often to run down outlaws and root out their hiding places, even if they were in homes.
> Entrapment wasn't even a defense until the early 20th century.
I've been thinking about this.
And you know what, if the 21st century were like the 19th century, I probably wouldn't care about entrapment:
- Drugs were legal
- Alcohol was legal
- Prostitution was (de facto?) legal
- Gambling was (de facto?) legal
- Price fixing was legal
- Insider trading was legal
- Braiding hair without a license was legal
- Lots of other stuff was... legal.
So hey, if all they're doing is entrapping thieves into thieving or murderers into murdering, I'm probably not going to be the guy freaking out about entrapment. But today, with lots of stuff not only illegal by statute but enforced with incredible zeal, I'm pretty comfortable being the anti-entrapment guy. And I'm pretty comfortable saying that entrapment is a modern problem, something which your American ancestors didn't have to deal with.
I was going to go into more detail, but I will keep it short. None of those were permitted due to the war on drugs. The closest you could call is drug dogs, but those were allowed after research showed their effectiveness.
Additionally they all are based on previous things cops were allowed to do. If you actually research the core of how law enforcement acts you will see it isn't nearly as willy-nilly as you imply here.
WoD contributed significantly to everything that is wrong with the police today - constant lying and fabrication, militarization, arrest quotas, abusing mentally ill or addicts to fill the said quotas, faking evidence and fradulent lab reports, legal highway robbery called "asset forfeiture", entrapping innocents, violating civil rights and criminal procedure rules, banning common household materials or chemicals because of being "drug precursors", making illegal searches and then asking for a warrant post-factum... And the list can go on and on. Look closer at any police/state power abuse and you'll probably find War on Drug's footprints on it.
That happens because they are fighting a losing war, on the citizens that they are originally supposed to serve and protect, and that can not be good neither for morale nor for morality. And it is not.
>>> Additionally they all are based on previous things cops were allowed to do.
When those paranoid libertarians say "next thing police would be allowed to strip-search and anally rape you because a dog said it's OK" - they are rightfully called crazy paranoid bastards. Then it happens and everybody is like "well, it's only based on things cops were previously allowed to do, so nothing to see here..."
All of those things weren't mentioned in the post I responded to.
> When those paranoid libertarians say "next thing police would be allowed to strip-search and anally rape you because a dog said it's OK" - they are rightfully called crazy paranoid bastards. Then it happens and everybody is like "well, it's only based on things cops were previously allowed to do, so nothing to see here..."
Again, I was disputing the fact that those powers came from the war on drugs.
Most of those as he listed I also agree with, but again, he didn't say "warrentless wiretaps" or "secret court wiretaps" he said "wiretaps". And in the same breath he said they should be required to wear a uniform 100% of the time they are doing official business.
It didn't came directly from WoD, but WoD was the reason and the motivation for them to exist. When you're talking about catching burglars and car thieves, you don't really need this kind of powers. But when you have moral panic that enables "all means necessary" approach - "OMG, drugs, think of the children!" - and you have police that is battling this war for decades and losing it, and thus feels it must up their game because nothing they did so far is even remotely close to working - then you get a perfect conditions for this kinds of abuse. It's not about drugs specifically, it is the conditions that WoD creates in the society and law enforcement that create this mess.
And yes, some of the things alexeisadeski3 listed make no sense. But again I suspect he listed them mainly because of the abuses that were perpetrated - if FBI only ever wiretapped mobsters, I doubt anybody would be ever objecting to it. In theory, mobsters have the same rights so it doesn't matter, in practice it does - all these things are created to protect good guys from bad guys, and if instead we have bad guys fighting even worse guys, on the way trampling good guys, then good guys would end up saying "WTF? A plague on both their houses!" That's how I see what alexeisadeski3 wrote.
And further research on drug dogs has shown that subtle body language by their handlers can cause them to alert. Fundamentally, a drug dog alerts because it wants to please its handler (and maybe get a snack). It doesn't understand the tension between drug laws and the 4th amendment, so it can't understand why it should be cautious about alerting. It doesn't understand the consequences of alerting could be a human getting stuck in a small cage for a long time.
And, they are used to punish people who do not consent to a search of their vehicle... officers will often have the dog jump on on the car and walk over the hood, top, and trunk a few times scratching the paint.
EDIT: If you are completely innocent and refuse to consent to a search and they call a K-9 unit in to "sniff" you are being punished for not giving up your rights.
1) A K-9 sniff is not considered an illegal search, because it detects only contraband.
2) An officer cannot detain you solely for the purpose of awaiting a K-9 unit, and it's getting harder and harder for them to fudge by being intentionally slow, with duty video cameras etc.
Well, that's what SCOTUS seems to believe. It is readily apparent though that dogs also detect handler cues, and may well also just alert erroneously, or detect such trace amounts that could be imparted to a car by incidental contact.
You were aware. Should I have assumed everyone else is too? I agree that this justification is weak, especially considering evidence that these dogs also respond to handlers' cues, but some folks are likely to be ignorant of the current law of the land. It was a statement of fact, not an argument in support of the law's interpretation.
re: drug dogs, there is no disputing that dogs are capable of detecting minute traces of various types of contraband. The problem is not with the dogs but rather the handlers. There is no practical way to guarantee the honesty of the handler.
I do not mean to say that drug dogs are okay. My point is that there is an amount of evidence that drug dogs do what they claim to do. The easiest way to get rid of them is to bring forward enough evidence to show they don't work as advertised.
Rather than the usual "drug dogs might not work so we should get rid of them" that gets thrown around.
>The easiest way to get rid of them is to bring forward enough evidence to show they don't work as advertised.
Unfortunately I don't share your optimism. In 2012 SCOTUS wasn't impressed with any fancy notions about data or statistics regarding false positives in prior policework; although, they didn't seem to mind 'objective' measurements of dog qualification when they were favorable (controlled environment qualification trials).
>"We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. In Gates, for example, we abandoned our old test for assessing the reliability of informants' tips because it had devolved into a "complex superstructure of evidentiary and analytical rules," any one of which, if not complied with, would derail a finding of probable cause. 462 U. S., at 235. We lamented the development of a list of "inflexible, independent requirements applicable in every case." Id., at 230, n. 6. Probable cause, we emphasized, is "a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even use-
fully, reduced to a neat set of legal rules." Id., at 232."[1]
That's already the law in many contexts - e.g., making a knowingly false statement to the Congress is a felony AFAIK. It's just not enforced because if it were, the Attorney General would have to put himself in jail, together with a good bunch of his peers and colleagues from other departments and agencies.
Lying under oath, a.k.a. perjury, is always unlawful. I'm speaking of when not under oath and knowingly fabricating stories or making stuff up like the reply below alludes to.
The police can lie to you but if you lie to the police you can be charged with obstruction of justice (which I believe you should be if you knowingly do it). The police and government officers and officials should be charged with obscuring the truth if and when they knowing spread falsehoods and lies. Because of the imbalance of power and consequences, it's rarely, if ever, a good idea to talk to the police (and this is a shame).
I assume he refers to the common practice of police promising leniency in exchange for cooperation, then ignoring the offer after the suspect cooperates.
Or when police lie about an accomplice having cooperated and implicating the suspect - so hey you should help us out to and save yourself.
Or when police pretend to be hitmen, seeking payment for murder. Or when police pretend to be drug dealers. Or when police pretend to be terrorists or weapons smugglers or or or or.
If the public knew what it was they might no longer 'approve' so best to keep it secret I guess? Interesting article and that they didn't redact the other 'methods' to be totally honest.
Also I love the "(So Far...)" in their presentation. Its as if they know what they are doing likely isn't acceptable but they haven't been called out on it (yet...) Awesome!
My guess is that this program involves officers laundering classified information by lying to other police officers, who then conduct the searches. "We had a confidential informant..." and so forth.
That would explain why there's so much focus on the intent of the officers.
So basically I am imagining a secretive "IC" office somewhere that sends an intern with whatever illegally collected intelligence they have to another unmarked room. The intern then passes the document across a table to some guy the Feds have some leverage on. He scans the documents, seeing carefully delineated highlighted sections and bullet points. He takes some papers out of the file, devoid of all identifying details, and places it into his bag. He walks out of the building and delivers this via sealed deposition to whatever domestic law enforcement authorities are relevant. Plausible deniability, done.
It sounds like you basically run into this: if you have information you can't use to arrest someone, you just wait until they commit an arrestable moving violation (how serious that is varies from state to state; in Virginia and DC, "failure to give right of way to a pedestrian," for example, is an arrestable offense, and is routinely violated by nearly every driver on the road.
You now can arrest them and impound their car. When you impound the car, you can search it. If there are drugs in the car, you can arrest them.
The supreme court has ruled this legal: even though you would give a ticket to anyone else and not arrest them, since you legally can arrest anybody that does it, you can use information obtained illegally to decide who you are going to do this to without violating the 4th amendment.
Don't blame the Supreme Court for this. The root problem is that the law allows for impounding of a vehicle.
We like to put the Supreme Court into the position of "fixing things to make them correct", but realistically that isn't their role.
All the Supreme Court said is that your right to unreasonable search and seizure does not stop a cop from using a legal method of search and seizure that would not normally be used.
Put another way, if the law gives cops the ability to do inappropriate things and the cops use this to do inappropriate things, that does not make the action illegal.
I would say that impounding of a vehicle is fine, since if someone is under arrest, you need to do something with the vehicle. What should not be fine is searching the car once it has been impounded, since the 4th amendment should apply here.
"The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized."
The car should constitute an "effect" and just because it happens to be in the possession of the police, does not mean that it should be searchable by the police without a warrant describing the car as the place to be searched, the probably cause upon which they are basing the warrant (failure to yield to a pedestrian shouldn't even be admissible as a cause for search) and the things to be seized.
It would look mighty ridiculous if the police arrested someone for a moving violation based on parallel construction or this new tactic and then tried to get a warrant for searching the car based on that fact.
Simply enforcing fourth amendment rights even for articles and effects in police custody should be enough to protect people for these absurd tactics.
I like your idea, but I don't know if it is feasible. There are lots of good reasons why cops should be allowed to search an impounded vehicle. Most notably safety, since who knows what you carry in your car.
Again I support the concept, I am just unsure if there are wrinkles in the implementation or not.
There are lots of good reasons why cops should be allowed to search an impounded vehicle. Most notably safety, since who knows what you carry in your car.
There's no reason why cops need to search a car "for safety". Someone who is not a LEO could easily do it, if as a society we think its worth the cost, and at the same time, those people can be banned from speaking to LEO's about whatever it is they find in the car (including drugs).
The Supreme Court could have declared that the search can only be for evidence of a particular nature for which the police already have probable cause and that failure to yield to a pedestrian is not probable cause for drug possession (of course, if we're just evaluating things on epistemological grounds, failure to yield to a pedestrian is not a probable indication of anything interesting).
Nothing in the judicial system supports that at the moment. Reason for action is considered immaterial for fourth amendment purposes across the board.
I was going to point out an example of the complexity of this, but someone else pointed out that the right of cops to search an impounded vehicles is an interesting one.
FYI I wasn't trying to blame the Supreme Court. I agree that bad legislation rather than bad jurisprudence is the problem here.
OTOH Selective enforcement is a real problem. A lot of the bad laws on the books would go away if they had to be enforced with even a modicum of impartiality (If 1 in 10 people that fail to yield to a pedestrian were arrested with their cars impounded, that law would go away real fast).
Do you think it possible that a police department could be forced via Writ of Mandamus to uniformly enforce any law used as pretext to search or seizure?
For instance, if someone is arrested for jaywalking because the cop objects to being filmed in public, the photography rights lobby would retaliate by petitioning the courts to force that entire department to apply an equal enforcement standard to any and all jaywalking infractions it observes thereafter.
If an ordinance generates one citation in a year when sampling (or even common sense) indicates it happens hundreds of times per day, the judge on that case might want to grow a pair and punish the use of the bullshit pretext to end-run around due process.
It is theoretically possible, but as we all know, the law is processed by machines with free will, which makes the outcome non-deterministic.
Schools were forced to desegregate largely through court orders, so requiring that law enforcement enforce the laws that they have recently chosen not to ignore uniformly rather than selectively is certainly possible via court order--but not very likely, in my opinion.
What's new--and has potentially wide-ranging impacts on criminal prosecutions--is public, documentary and testimonial, evidence from inside federal law enforcement that it is systematic policy.
My grandfather worked in law enforcement for most of his career, after his stint in the military (in the 40's and 50s). I think he would be really disappointed with the legal system as it is today.
I support the ACLU, but I wish there was an organisation working to limit the scope of our domestic legal system across the board. It would be tough politically, but I'd eagerly lend a hand to anyone willing to try.
The federal government is incredibly good at finding reasons to charge people. It makes me wonder exactly why it is that the government wants to keep this secret. I'm sure they have a good (ostensible) reason to do so. But at the same time, it is also likely that the tactic is a means of trumping up charges against people.
1. Fed Legal staff at court hearings cost money,overtime hours,etc, etc..purpose hear is a court trial where defendant pleads guilty.
2. If the technique is known than that has to be brought up at trial as the defendant has the right to know both the evidence and the accuser which makes for longer messier trials that cost more.
Why bother with a trial at all, right? If most people at the government agency that investigated the case figure he's guilty, just throw him straight in prison.
Any organization that use intelligence accomplish its goal is going to try to hide its sources and methods, but we should not condone all means of getting there.
http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE...