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Monday, August 12, 2013

Surveillance metastasizes

Often the worst official crimes start out as well meaning attempts to improve the fight against criminality, but in a bureaucratic context. That is the case with NSA and it's capabilities. We are told publicly that the NSA only collects "meta information" that there is no privacy expectation on meta-information, and that therefore we should trust NSA that it will strictly enforce the law and hold it's efforts to the scope of the Foreign Intelligence Surveillance Act and we won't spy on Americans. But this is too powerful a tool for the various police agencies in our government to keep to themselves.

From an Anti-Terrorism tool to an Anti-Drug Crime tool

So how did that NSA program get to be the basis for a massive internal spy effort? Well it starts out with a directive asking for improved capability to fight "Transnational Organized Crime"

I can't find the date on this directive. So you have an innocent sounding directive from the white house from the National Security Council dated sometime in 2012 calling for improved Intelligence and information sharing:

Strategy to Combat Transnational Organized Crime: Enhance Intelligence and Information Sharing

The Article gives the standard boilerplate justification:

"A shift in U.S. intelligence collection priorities since the September 11, 2001 attacks left significant gaps in TOC-related intelligence. Meanwhile, the TOC threat has worsened and grown in complexity over the past 15 years. The fluid nature of TOC networks, which includes the use of criminal facilitators, makes targeting TOC increasingly difficult."

So this becomes the rationale for a program initially directed against international Crime Syndicates to become a nationwide program:

"Enhancing U.S. intelligence collection, analysis, and counterintelligence on TOC is a necessary first step, but should be accompanied by collaboration with law enforcement authorities at Federal, State, local, tribal, and territorial levels and enhanced sharing with foreign counterparts. We will also supplement our understanding of TOC involvement in licit commercial sectors to better enable policymakers to develop specific interventions. Our aim is enhanced intelligence that is broad-based and centered on substan- tially upgraded signals intelligence (SIGINT), human intelligence (HUMINT) and open sources intelligence (OSINT). This effort will be aided through greater information sharing with foreign partners and closer cooperation among intelligence, law enforcement, and other applicable agencies domestically."

The problem here is that a program aimed at international drug cartels, but operated down to the locality is going to enable spying on not only drug king-pins, but all the way down to the local pot-head who sells on the side to support his habit. In otherwords. This noble sounding objective is the rationale for a massive program that enables blanket wiretaps of millions of people.

And of course every legal issue has to be a national security issue to justify the secrecy involved:

We will augment our intelligence in step with the new TOC threats described previously. The Administration will review its current intelligence priorities, including the National Intelligence Priorities Framework, and determine how best to enhance our intelligence against the highest-level TOC threats to national security.

Decoding (note some terms skipped because not germaine):

"Enhancing SIGINT and HUMINT collection on TOC threats"...
SIGINT authorizes NSA to gather and keep phone and messaging records on targets. HUMINT allows the hiring of personnel ot infiltrate or spy on people individually.
"Coordinating with the interagency International Organized Crime Intelligence and Operations Center (IOC-2) to utilize existing resources and databases of the Organized Crime Drug Enforcement Task Force (OCDETF) Fusion Center (OFC) and SOD to share intelligence, de-conflict operations, and produce actionable leads for investigators and prosecutors working nationwide;
The Organized Crime Drug Enforcement Task Force (OCDETF)
"Employs a strategy to focus federal drug resources on reducing the flow of illicit drugs and drug proceeds.., and conducting expanded, nationwide investigations against all the related parts of the targeted organizations." which means down to the end user essentially.
All folks had to do was to read these messages carefully and run down the terms and they could have seen that this order authorized a nationwide spy program. Reuters detailed from what they did, but anyone reading this directive and being able to decode the Acronyms could have predicted it.
Special Operations Division
Established in 1994, the Special Operations Division (SOD) is a DEA-led multi-agency operations coor- dination center with participation from Federal law enforcement agencies, the Department of Defense, the Intelligence Community, and international law enforcement partners. SOD’s mission is to establish strategies and operations to dismantle national and international trafficking organizations by attacking their command and control communications. Special emphasis is placed on those major drug trafficking and narco-terrorism organizations that operate across jurisdictional boundaries on a regional, national, and international level. SOD provides foreign- and domestic-based law enforcement agents with timely investigative information that enables them to fully exploit Federal law enforcement’s investigative author- ity under Title III of the U.S. Code. SOD coordinates overlapping investigations, ensuring that tactical and operational intelligence is shared among law enforcement agencies.
The Fusion Centers
...are State organized entities that use wiretap information to go after general crime as directed by Governors at the State Level. There are also Fusion centers established by the Federal Government to operate various programs. The article goes on to define a number of them. I'm only sharing those directly related to domestic spying but the whole idea of fusion centers is to coordinate efforts, which usually means coordinating domestic spying, law enforcement and international spying. So the argument that "we don't spy on US citizens" is either false, or these organizations don't do anything.
De-conflict operations
First reading suggested this was an effort to prevent conflict, but it appears that this referred to the effort to ensure that every effort using spying was supported by nonspying corroborating evidence so the investigation real sources could be kept secret.
And this is a scandal as yet unrevealed:
"Using the National Intellectual Property Rights Coordination Center, an interagency and inter- national law enforcement task force established in 2000 and led by ICE, to assist with combating intellectual property theft and maintaining the integrity of public health, public safety, the military, and the U.S. economy."

We can expect to find out that NSA intelligence sharing is helping Giant Companies go after people who download movies, pirate software and who knows what else.

But of course the part that concerns us today is the following order:

" Enhancing Department of Defense support to U.S. law enforcement through the Narcotics and Transnational Crime Support Center."

Authorizing NSA to support Drug warfare in the name of National Security

The next part of the directive specifies actions to be taken. Actions that pretty much spell out authorization for local authorities to use NSA information and to spy on folks related to National efforts, drug enforcement, and law enforcement:


"Strengthen ties among U.S. intelligence and counterintelligence, law enforcement, and military entities, while strengthening cooperation with international intelligence and law enforcement partners.

These efforts were implemented through the Fusion Centers and programs like Infraguard.

Develop and foster stronger law enforcement and Intelligence Community relationships among Federal, State, local, tribal, and territorial authorities.

The following reinforces a long time intelligence sharing effort were we spy for them and they would spy for us:

Support multilateral senior law enforcement exchanges to promote the sharing of criminal intelligence and enhance cooperation, such as the “Quintet of Attorneys-General” and the “Strategic Alliance Group” fora established with the United Kingdom, Canada, New Zealand, and Australia.

And of course the following enables the spies to go after everyone involved in using or dealing drugs;

Establish a comprehensive and proactive information-sharing mechanism to identify TOC actors and exclude them from the United States or uncover them within the United States.

quotes from:

The Organized Crime Drug Enforcement Task Force Fusion Center
Created in June 2006, the Organized Crime Drug Enforcement Task Force (OCDETF) Fusion Center (OFC) serves as a central data warehouse for drug intelligence, financial intelligence, and related investigative information, and is designed to conduct cross-agency integration and analysis of such data with a view to creating comprehensive intelligence pictures of targeted organizations, including those identified as Consolidated Priority Organization Targets—the United States’ most wanted international drug and money laundering targets. The OFC provides agencies with operational human and financial intelligence, and is staffed with agents and analysts detailed from 14 participating investigative agencies. These personnel conduct analysis to produce investigative leads, develop target profiles, and identify links between drug organizations and other criminal activity in support of drug investigations.
The International Organized Crime Intelligence and Operations Center
In May 2009, Attorney General Eric Holder announced the establishment of the International Organized Crime Intelligence and Operations Center (IOC-2), an entity that marshals the resources and information of U.S. law enforcement agencies and Federal prosecutors to collectively combat the threats posed by inter- national criminal organizations. Understanding that international criminal organizations are profit-driven, IOC-2 also works with investigators and prosecutors to target the criminal proceeds and assets of inter-national criminal organizations. In recognition of the demonstrated interrelationship between criminal organizations that engage in illicit drug trafficking and those that engage in international organized crime involving a broader range of criminal activity, IOC-2 works in close partnership with the OFC and SOD.

The IOC would not be germaine to domestic crime, except it works with the SODs and shares intelligence with other Fusion Centers and Federal and State Law enforcement.

The EPIC Border Intelligence Fusion Section
The El Paso Intelligence Center (EPIC), managed by the DEA, was established in 1974 to support enforce- ment efforts against drug and alien smuggling along the Southwest border. EPIC has grown over time to better support Federal, State, local and tribal law enforcement. The DHS Office of Intelligence and Analysis established the Border Intelligence Fusion Section (BIFS) at EPIC in November 2010 with the objective of providing U.S. law enforcement, border enforcement, and investigative agencies with multi-source intelligence and law enforcement information to support investigations, interdictions, and other law enforce- ment operations related to the Southwest border. The BIFS is a joint, collaborative effort of the Department of Homeland Security, Department of Justice, Department of Defense, and partners in the Intelligence Community and, as a multi-source/all threats intelligence section at EPIC, the BIFS will access and analyze intelligence and information received by and developed at EPIC in order to produce a common intelligence picture and common operating picture.

EPIC is a classic example of mission creep.It was supposed to focus almost entirely on border crime, but now it works with local law enforcemnt along the border and within border states. This amounts to most of the country.

So from necessary "national security needs" we develop programs that wind up causing all sorts of troubles for ordinary Americans.

Thanks to these capabilities we have millions of people in prison.

From Alternet/Salon / By Andrew O'Hehir DEA:

This is the logic of National Security. Everyone is connected to someone. And even if someone like you or I aren't involved in drug smuggling, we might read books, or be related to someone who is. So it's ironic that the people with the most separation from international drug cartels are the most targetted. It is also ironic that the people who should have been closest to the programs are the last ones to find out about them.

How the SOD bypasses the Constitution

Fakhoury (Deeplinks) writes in SOD bypasses the Constitution

Even beyond the larger systemic problem of insulating NSA surveillance from judicial review, criminal defendants whose arrest or case is built upon FISA evidence are now deprived of their right to examine and challenge the evidence used against them.

Fakhoury goes on:

Documents uncovered by Reuters specifically instruct federal agents and local police to “omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony.” Instead, cops and agents are told to “recreate the investigative trail” to make it look like regular police work. This is “parallel construction,” a marvelous and terrifying bureaucratic neologism that in plain English appears to mean lying. For instance, it might mean claiming that a traffic stop that led to a drug bust stemmed from a broken taillight or an illegal left turn, rather than an NSA intercept, an overseas wiretap or a CIA informant. "

And all this flows from the National Security Commission and their directives to do "intelligence sharing" and go after the drug cartels. Only they usually can't get the leaders of the various International Organizations -- so they go after ordinary folks instead. It's easier.

Fakhoury’s recent post on the EFF’s DeepLinks blog explores various ways that these deliberate deceptions appear to violate the Fifth and Sixth Amendments, and undercut the crucial role of legal scrutiny entrusted to the courts. They prevent judges from assessing the constitutionality of government surveillance (since they never even find out about it), and deprive criminal defendants of the venerable common-law right to examine and challenge the evidence against them. He also makes the broader point that the NSA’s enormous trove of surveillance data has provoked an “unquenchable thirst for access” among other law enforcement agencies, whose leaders imagine all the wonderful things they could do with it. "

This is because the information from deep sources, being clearly unconstitutional is "wiped" from the investigative records after it is "cleared" and verified through legal channels.

Taken together, the Fifth and Sixth Amendments guarantee a criminal defendant a meaningful opportunity to present a defense and challenge the government's case. But this intelligence laundering deprives defendants of these important constitutional protections. It makes it harder for prosecutors to comply with their ethical obligation under Brady v Maryland to disclose any exculpatory or favorable evidence to the defense—an obligation that extends to disclosing evidence bearing on the reliability of a government witness. Hiding the source of information used by the government to initiate an investigation or make an arrest means defendants are deprived of the opportunity to challenge the accuracy or veracity of the government's investigation, let alone seek out favorable evidence in the government's possession.

This means that even judges don't know what is going on. The Reuters article notes:

Nancy Gertner, a Harvard Law professor who spent 18 years as a federal judge and cannot be accused of being a radical, told Reuters she finds the DEA story more troubling than anything in Edward Snowden’s NSA leaks. It’s the first clear evidence that the “special rules” and disregard for constitutional law that have characterized the hunt for so-called terrorists have crept into the domestic criminal justice system on a significant scale. “It sounds like they are phonying up investigations,” she said. Maybe this is how a police state comes to America: Not with a bang, but with a parallel construction."

Actually I'd say it comes to America with Joint operations, Fusion Centers and parallel construction is just one of the means to keep the program a secret so we can all continue to live under the delusion that we actually live by the principles of our declaration of Independence and the bill of rights. After all if you don't know you are being spied on "no knowledge, no foul." It "never happened" is something I've heard before. For most of my career, and that of many other folks connected to the Federal Government we've been using. but there are fouls here:

"Millions of people have been sent to prison on drug-war convictions over the last 20 years. Most of those people have been poor and black. We will never know how many of those cases resulted from secret evidence collected by spy agencies, but it might not be a small number. One of the Reuters articles that broke this story quotes DEA officials as saying that the “parallel construction” tactic had been used by the agency “virtually every day since the 1990s.” Legal scholar Michelle Alexander, author of the recent bestseller “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” sent me an email from her family vacation to say that these revelations “certainly lead one reasonably to wonder how many people — especially poor people of color, who have been the primary targets in the drug war — have been spied on by the DEA in the name of national security.”

The article from Alternet goes on:

"over the past week, the DEA’s Special Operations Division – originally created in 1994 to battle Latin American drug cartels – routinely funnels “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.” We’re talking about data collected by all the clandestine but theoretically legal means that Edward Snowden’s leaks have told us about, data gathered in the name of combating terrorism that ends up being used for entirely different purposes. These are ordinary drug prosecutions with no links to terrorism or other national security issues, but in which the information that led to the original arrest is treated as a state secret. "

No Wonder the Administration is angry. Most of us in this business keep our mouths shut about this stuff. Heck, if I were still working or got a job in the business again I'd revert to my usual "I see Nothink! I see NothinK!" response to this stuff. It's a shame that those of us connected to the military and the security state should have to quote from "Hogan's heros" which was about prisoners in the German POW Concentration camps after all.

PS: The list is long

The enemies list has already expanded. In my previous blog I noted how Occupy was labeled a "potentially terrorist" organization and gone after in coordinated efforts out of Norfolk. I haven't finished running down the details of that story yet, but the Fusion centers now seem to have access to NSA wiretap info to go after pretty much anything they want to. And even worse info is hinted in the directive's mention of "intellectual property" because that is a private effort and yet NSA is directed to provide intelligence to them too.

And the IRS

UPDATE: Add the IRS to the list of federal agencies obtaining information from NSA surveillance. Reuters reports that the IRS got intelligence tips from DEA's secret unit (SOD) and were also told to cover up the source of that information by coming up with their own independent leads to recreate the information obtained from SOD. So that makes two levels of deception: SOD hiding the fact it got intelligence from the NSA and the IRS hiding the fact it got information from SOD. Even worse, there's a suggestion that the justice Department (DOJ) "closely guards the information provided by SOD with strict oversight," shedding doubt into the effectiveness of DOJ earlier announced efforts to investigate the program.

Further Readings and links used in this post:

Reuters Article:
article on NSA
Further Readings:
Later writings by me:
Additional Readings:
Bush's Loogie:
Forbes Editorial:
Forbes Lavabit article:
Guardian Article

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