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Prosecutors halt vast, likely illegal DEA wiretap operation (usatoday.com)
283 points by anon1385 on Feb 26, 2016 | hide | past | web | favorite | 82 comments

Don't get me wrong, I'm glad to see this was stopped, but how long until the DEA is simply drinking from the same firehose the NSA is? We've already heard all about parallel construction, and now there's talk about sharing the information the NSA sucks up. Why isn't any of this going through Congress or being given proper oversight?

Not very long before they get NSA data, Obama just took the first step: http://www.nytimes.com/2016/02/26/us/politics/obama-administ...

This is the worst case scenario from the NSA mass-surveillance debacle.

I could plausibly justify it when the NSA (a department of the DoD) was solely focused on national security (assuming the NSA's self-imposed controls, protocols, procedures, etc were implemented and executed as the NSA Director claimed).

Now national security resources are being retasked to fight another failed prohibition. The US Federal Government's failed drug policies are as much a threat to US national security as foreign drug cartels are. Re-legalize narcotics, redirect enforcement and imprisonment funding to rehab, education, abd.

The DEA's Special Operations Division already shares data with the IC for parallel construction purposes, and they have a $280,000,000 budget.

Obama really fooled me with his "nice" speeches at election time...

Do you have any proof he had decided to take this course of action before he took office when he was making campaign promises?

I'm under the impression that the Pentagon and the intelligence agencies are extremely good at drumming up scary daily reports which wear down any president's resolve.

In July, 2008, then Senator Barack Obama voted for telecom immunity from lawsuits for illegal wiretapping.

In October, 2007 he had promised to filibuster any attempt to give telecoms retroactive immunity.

So this counts in my book as his first broken campaign promise, and proof that he hoped to continue warrantless wiretapping before he became President.

Something about the classified reports changes people.

Most of IC guys are careerists. Presidents come and go, which makes me think the DoD has a lot of practice at scaring novice presidents into accomplishing their policy goals.

>Do you have any proof he had decided to take this course of action before he took office when he was making campaign promises?

Does it really matter when he decided to take this course of action? I think what matters is that he did.

>I'm under the impression that the Pentagon and the intelligence agencies are extremely good at drumming up scary daily reports which wear down any president's resolve.

That's no excuse, it doesn't justify his actions. Obama was selected from a country of 300 million people to lead the nation, it's perfectly justifiable to expect for him to be above being manipulated by "scary daily reports". And here he is, step by step turning the US into an Orwellian police state (God, I wish this was hyperbole).

Also, I seriously doubt the NSA has been bugging Obama for permission to hand over their data to various LE agencies.

> Does it really matter when he decided to take this course of action? I think what matters is that he did.

I would hope a President (or any politician really) would feel free to change their mind as they're presented with evidence they weren't previously familiar with. Or maybe their own priorities have even changed 8 years later and that's influenced their change of heart. That sort of thing happens.

Just because I might disagree with their conclusion or interpretation doesn't mean they shouldn't be free to reevaluate.

One of the most hollow, worthless political insults is to call someone a "flip flopper" IMO. It panders to ignorance. I want politicians to be persuaded by the facts. To not be zealous idealogues.

Then I guess that every election promise that he choose not to keep should be brought back to a popular vote/referendum ... that would help people not feel betrayed.

It's not like he has to promise anything...

You're voting for a leader. Not a checklist.

CA politics seems to have trouble with referendums. I want the President to feel like they have a duty to make unpopular decisions sometimes.

The POTUS should not be considered a leader any more than the speaker of the house. He shouldn't be leading "the people" to do anything, according to the Constituional role. But in the movies, he's a standup guy every time so we get this weirdly quasi-religious idea that he's some special person by virtue of the vaulted position. A position which has been wildly perverted in an incestuous political feedback machination. Patriot Act still in place? Yeah, now imagine the other cancerous beginnings of the Federal Reserve, Social Security, the IRS, the FCC and on and on. The POTUS isn't a leader, it's a political tool that affects society when hardships (usually financial) arise and congress is too slow and inept to handle it, so the executive branch acts and 1/3 the legislative is too busy vying for the next election cycle to take a stand, leaving the acts in place the vast majority of the time. No matter how well or poorly conceived.

I find it utterly staggering how frequently US politics seems to be in "election mode"... 2 years away from the Presidential Election that race gears up meaning that the president is only really 'focused on the job' for half the time and campaigning the rest, then there's the senate, half term senate elections because what the hell do you need to alternate back and forth so frequently for, its the same term for each election you've just made it twice the political mess with this half term election nonsense...

I live on the other side of the world in Australia... and I am STILL getting BOMBARDED with this constant cycle of election crap going on in the USA due to how much the US media drives advertising.

Its just crazy... You guys have way bigger problems than the whole "the people think POTUS is in charge, but congress is actually meant to be in charge", it starts with the fact none of your politicians have enough time to do their fucking jobs due to all the campaigning.

House Rep terms are really kind of stupidly short. Two years means they are constantly on the hamster wheel of campaigning.

Now, there could be the argument that being a professional politician was never supposed to be a thing, but any hope for that is dead and gone, probably before Washington set the precedent of stepping down after two terms.

I think this is an interesting question: is it worse for him to have made promises he never intended to keep, or for him to have gone back on his promises after he was elected? I think that the former would probably be a worse indictment of his character, but at the end of the day the result is the same from the outside.

I wouldn't be surprised if he was blackmailed by the NSA. It's not like that's never happened before in the US.

Whilst many people would see your comments as tinfoil-hattery, the point is an interesting one. There is obviously no proof that the president has been blackmailed by the NSA. However it is not outside the reasons of their capabilities to have targeted and monitored him prior to him becoming president whilst he was unaware of their capabilities.

The point, and this is important, is that the NSA not only has the real technical capability to fully monitor any number of up-and-coming senators, but there are no checks and balances in order for us to know that they HAVEN'T targeted and subsequently blackmailed him.

Technology has made it easy to target and monitor anyone that has the possibility of making a noticeable impact on the system. The people that control the system at that point in time, are then able to embrace, extinguish or "redirect" any outside risk to their power base.

Total surveillance makes this process simple. Not only can you start to weed out the bad apples, but you can also start to automate the process. Slowly you can train the system to spot the risks. He who controls the surveillance, then controls everyone else.

With complete storage archives of all the data, you can also backtrack on flagged entities and see their entire history. Imagine being presented with a blackmail dossier that listed (with photographic / video evidence) your youthful escapades during your school and university years. "I did not inhale!". "Oh yes you did Mr President, and here's a HD video of it".

The NSA have taken the worst that the internet had to offer and weaponised it against all citizens - both foreign and domestic.

One NSA whistleblower claims they do indeed do blackmail (https://www.youtube.com/watch?v=d6m1XbWOfVk). He even implicates them doing it to Obama. Granted there's no accompanying top secret powerpoint so I'm sure no one will believe it.

Thank you for linking Russ Tice, I have watched most of his interviews and people should be more aware of what he says. More specifically, he says Obama was not even senator yet, he was simply the nominee, when wiretap papers came accross his desk... This has vast implications about their true targetting methods.

It's easy to pooh-pooh such a conspiracy theory. Yet if I ask myself whether a three letter agency would go this far to protect itself, the last five (or so) years has revealed an ambition (and lack of boundaries) that leads me to answer 'quite possibly'.

A general problem with conspiracy theories is that they require some number of people to keep quiet regarding the matter. However, in an environment where keeping quiet is a core, institutionalized requirement, conspiracies become much less hard to believe (or at least consider).

I don't have a problem seeing this one as a real possibility.

It's the man's job to run the bureaucracy, not be run by the bureaucracy. Any President who lets himself get run is not qualified to be President.

(Yes, I know this means most recent Presidents and current candidates are not qualified to be President. But does that really shock you?)

I wonder what they mean by "changing the rules". Are they talking about another Executive Order? How would they just "change the rules" without violating some law?

My fear is this will be done through CISA, as I expected it would be. That would give them the excuse to say it's legal.

DEA needs to be dismantled. What are useless organization. They are thugs that go after the poor. Founded by Nixon to basically do just that.

Some interesting facts:

"The total budget of the DEA from 1972 to 2014, according to the agency website, was $50.6 billion." So in 40 years 51 billion dollars, or a billion dollars per year.

"In 2005, the DEA seized a reported $1.4 billion in drug trade related assets and $477 million worth of drugs.[20] According to the White House's Office of Drug Control Policy, the total value of all of the drugs sold in the U.S. is as much as $64 billion a year"

So basically they are robbing poor and not really making any dent in the drug trade.

Law enforcement took more stuff from people than burglars did last year.

Quote "Here's an interesting factoid about contemporary policing: In 2014, for the first time ever, law enforcement officers took more property from American citizens than burglars did. Martin Armstrong pointed this out at his blog, Armstrong Economics, last week.

Officers can take cash and property from people without convicting or even charging them with a crime — yes, really! — through the highly controversial practice known as civil asset forfeiture. Last year, according to the Institute for Justice, the Treasury and Justice departments deposited more than $5 billion into their respective asset forfeiture funds. That same year, the FBI reports that burglary losses topped out at $3.5 billion."


not to mention how much it costs to support an enormous prison population (largest in the world?) and the permanent toll it has on those with criminal records for drug offenses.

do privatized for-profit prisons have a gov't lobby to help fill their cells to max capacity?

largest in the world?

Largest by total number by a huge margin (2.2 million, with the next largest being China with 1.7 million), but we've fallen to the #2 spot when measured per capita. Newly #1 there is Seychelles with about 700 prisoners out of a population of 90,000.

Source: http://www.prisonstudies.org/highest-to-lowest/prison_popula...

Yep. Probably more than one, but a quick google search yielded: http://apcto.org/

They're getting $2 billion/year now, according to Wikipedia. I wonder if your $50.6B is not inflation-adjusted; it struck me as surprisingly 'low'.

It's likely not low. The FBI's budget is $8 billion, and the DEA is a small fraction the size of the FBI. I'm rather amazed at the reach of the DEA's activities off of that small of a budget however.

It's already happening (and has been for some time). The NSA passes information to the DEA which they then build out a separate evidentiary chain to satisfy the legal requirements.


If it went through Congress, the politicians couldn't be caught supporting it.

They want plausible deniability. If it works, Congress can claim they reduced crime. If it fails, they can blame the President failing to properly oversee his people.

They have literally no incentive to get involved.

I thought the Snowden do s or some other leak had already shown the NSA was sharing with DEA... I honestly think its most likely already happening.

Is it passed time that the federal government has overstepped its authority here? We need to see some repercussions for directors when these departments start breaking the law.

When I exceed the speed limit and get caught I get a speeding ticket. To enforce the law we put police in strategic spots and give them the tools to enforce the law. We should have similar policing of federal agencies.

Well that's what the the courts are for. There are punishments like adding oversight into the agency.

It's reactive, but hey you don't get a ticket for "conspiracy to speed".

There isn't a lot of piercing of the corporate veil happening in gov't agencies though. As in people getting arrested.

But at the same time, if you work at the FBI, want to try something, and your lawyers say it's legal... Should you go to jail? Should the lawyer?

Sending the person in jail doesn't really help much, but forcing the agency to adopt new postures could help more. We could do both as well, but what does throwing the person in jail really accomplish, apart from giving people a sense of vindication?

I don't know about the US but in Canada a "Justice of the Peace" has a full-time job to signs police warrants not regular judges who deal with criminal cases. I've hear that Justices rarely deny police requests and they deal with police all day... there is never a defense attorney present when wiretaps are agreed upon. Oversight is always well after-the-fact.

They are only ever question way later into the legal process (sometimes over a year afterwards) and always with a different judge and circumstances.

Law enforcement have a far easier job getting it approved than it is for defendants to question it's legitamcy. And even if it is ruled illegal the wiretap still happened and the defendants privacy was still unduly violated. But there is almost never any repercussions outside of the potentially losing a legal case against a defendant.

The chains of responsibility between where decision-making takes place and scrutiny is made are very disconnected.

> could help more. We could do both as well, but what does throwing the person in jail really accomplish, apart from giving people a sense of vindication?

It creates an incentive for individuals not to do things that would land them in jail.

Yes, I do believe that when a law is broken by a law enforcement agency there should be appropriate penalty. In certain cases that should mean extra oversight and or criminal prosecution of directors.

I don't have the right answer on oversight and enforcement but I would love for agencies of the executive branch to act within the confines of the law and stop acting like breaking into our lives is just part of protecting us.

Do you mean something like the office of the inspector general [1], or an actual law enforcement agency focusing on federal agencies? If the latter, you're in danger of proposing an infinitely recursive solution.

1 -https://en.m.wikipedia.org/wiki/Office_of_the_Inspector_Gene...

A major problem seems to be that 'ex-cops' don't like inspecting 'cops'. However, balancing powers between three entity's seems to work well.

Agency A inspects agency B, agency B inspects C, C inspects A. That way B can't threaten A.

As a bonus it really set's things up so they get antagonistic with each other.

Likely illegal doesn't mean anything. It's the judicial branch that decides whether it is or is not legal. It's not until that point.

For some reason there's a lot of leeway for the government to push boundaries in this regard. The running outcome is that if something was not expressly illegal then there's no prosecution but a slap on the wrist. The judicial branch should start taking a much harder line against overreach; they should begin operating the other way: if it's a case of citizen rights and privacy then it's not legal unless it's expressly legal.

The entire common legal system is set up in a way that is the exact opposite of this. Everyone is breaking the law all the time. It's suppose to be the case that unless someone complains about something expressly, that the government is suppose to mind its own business. This is no longer the case in the United States. The State has created many different departments to go after people when no reported crime has been committed. And then it continues to overreach on this using totalitarian information systems. The logic of the system keeps becoming more totalitarian.

It makes sense that if some harm keeps getting committed then someone should do something about it. But if that's not the case, then it does not justify any action from the government. Like in Mexico the drug war, sure go after the major drug kingpins using totalitarian systems. But to put this on petty criminals, small time crooks, etc. that's just horrible.

> But to put this on petty criminals, small time crooks, etc. that's just horrible.

Petty criminals and small time crooks are often the ones that make life hardest for people, especially the poor who live in the neighborhoods where these guys operate.

When I lived in Wilmington, DE (a pretty run down post-industrial city), our favorite restaurant was run by an elderly Indian couple. But it was in a terrible neighborhood, and one day their house was broken into. These sweet, hard-working people were violated, and by who? Not some kingpin. By some "small time crook." Should he not be prosecuted to the full extent of the law?

> unless someone complains about something expressly

Would cover your case.

You don't think people complain about people dealing drugs out of their neighborhood? 80-90% of people support keeping all drugs besides marijuana illegal.

I don't disagree with your assertion that people complain, and I don't disagree that when people complain the police should look into it. I don't agree on massive dragnets going after thousands of people in the name of fighting crime who might be only peripherally involved with the situation.

You mean a pharmacist? I'm pretty sure most folks like having a pharmacist close by....

The inverse of your implication that smaller crimes should be less prosecuted is that merely being accused of a more serious crime means you have fewer rights.

Keep in mind that we have the precedent of innocent unless proven guilty in the US, so the suspected drug kingpin, terrorist, or serial killer is just as innocent as the suspected bubble-gum thief.

I don't know I can't find it in my conscience to justify scumbags that are well known to be scumbags but use criminal syndicates to hide their crimes. For instance the mafia uses smaller gangsters to commit crimes and then hide behind those. I can't get myself to condone that, there is nothing to stop people like that then through totalitarian systems.

The situation you describe is the precise reason that the United States has the RICO act[1]. Prove that someone is involved in a scumbag organization (insert legalese for "scumbag" here)and they're guilty just like the person who committed the crime.

Our system, while admittedly imperfect, prioritizes protecting the innocent over punishing the guilty (obviously it's more complicated than that, but that's the core)


I'm not sure I agree. I would think that an act can be considered illegal upon committing that act. The part that the judicial branch covers is whether you should be punished for it. A simple example is running a red light; it's clearly illegal with or without the judicial's opinion on the matter, but they may or may not decide to punish you for the act based on circumstances. For instance, you ran the red light due to a medical emergency and you saving a life may convince a judge to dismiss the fine. That doesn't suddenly make running red lights legal, even in other cases of emergency.

But, I would agree that there is lots of leeway with this because of things that seem illegal under an interpretation of the law but the judicial may aid in reversing that thinking. Which would likely end up affecting the related law in some way.

Your last few sentences I totally agree with.

"Likely illegal" means a lot! A guy kills his wife; his actions are "likely illegal"... it's just that we have a "innocent until proven guilty" system (thank goodness!). It isn't until the judicial branch rules that we know for sure that it was illegal, and that there was sufficient evidence to prove that it was illegal.

There's tons of precedent for murder. There's no precedent for massive surveillance. We may have some precedent with this case.

Thank goodness for Snowden or we'd probably have none of these cases going to trial. In many ways you can see agencies stopping the <shady thing> instead of taking it to court. They do that because if they lose then it becomes actually illegal and the power grab gets harder.

> There's no precedent for massive surveillance

But there is precedent for just "surveillance". In your own words, there's precedent for murder - would I be fine if I were the first "mass murderer"?

That's a good point. I actually think that point would make a good argument in court.

    Q: So what in a sense you’re saying is that there are certain situations…where the president can decide that it’s in the best interests of the nation or something, and do something illegal.

    NIXON: Well, when the president does it, that means that it is not illegal.

    Q: By definition.

    NIXON: Exactly, exactly.

In case you were interested and wanted the (mostly) full quote[0]:

David Frost[1]: ...Would you say that there are certain situations - and the Huston Plan was one of them - where the president can decide that it's in the best interests of the nation, and do something illegal?

Richard Nixon[2]: Well, when the president does it, that means it is not illegal.

Frost: By definition.

Nixon: Exactly, exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

Frost: The point is: the dividing line is the president's judgment?

Nixon: Yes, and, so that one does not get the impression that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress.

[0] - http://www.theguardian.com/theguardian/2007/sep/07/greatinte...

[1] - https://en.wikipedia.org/wiki/David_Frost

[2] - https://en.wikipedia.org/wiki/Richard_Nixon

Yep... Love that phrase "the FBI's covert operations" ...

Nothing makes the police sound like fascist paramilitary thugs faster than "covert operations".

Likely illegal Doesn't mean anything

This kind of statement has always bothered me - some actions are clearly against a plain reading of a law long before a court has anything to say on the matter.

Right, but you being bothered doesn't have any legal weight.

It's kind of like the torture thing (excuse me, "enhanced interrogation"). It's plainly against the law, but your counsel has a novel legal theory about how black is actually white, up is down, etc. The person who would prosecute you for violating that law is the one you appointed, or possibly Congress if they felt like impeaching you. But... nothing happens. People argue about whether what you did is really right, or if torture is actually torture, and life goes on.

That's the problem though. The courts haven't said anything related to these types of operations. It's not like drunk driving with clearly defined tests and much precedent law.

The "prosecutors" of the title are the ones who were "authorizing" (along with a "single state court judge").

This is a voluntary reduction. Neither the judge nor the prosecutors authorizing the "likely illegal" wiretaps have been charged with any wrongdoing.

There is nothing in place to prevent a similar thing from occurring again.

Indeed. "I definitely don’t apologize for using this tool to hit the cartels in Riverside County ... this is still a tool that I believe in."

In cases like this, they almost always voluntarily pull back on questionably legal activities to prevent any kind of legislative (or similar) response that might stop future questionably legal endeavors. I'm sure that's what they've done in this case.

Judges can't be charged with misinterpreting the law. They just get disbarred.

And persecutors also have absolute immunity. They can only be charged for things done entirely outside the scope of their duties.

So is there any legal recourse against the public servant who violates the law, if the law itself provides no penalties?

In short, if this isn't punished, why won't it happen repeatedly?

> So is there any legal recourse against the public servant who violates the law, if the law itself provides no penalties?

(1) By definition, if the law provides no remedy, there is no legal recourse;

(2) The law often provides remedies, either specific to the violation or more general, but there may be difficulties in securing them (e.g., many violations of people's rights are, in fact, crimes by government agents. However, prosecutors are unlikely to pursue such crimes, especially if they were in support of executive policy rather than a rogue -- with respect to the leadership -- agent. Many also would generally open up civil liability under generally-applicable principals of law, but public officers and the public entities they work for may be able to assert various forms of governmental immunity to such liability.)

Ultimately, the remedies for bad behavior by government often must be political, rather than legal.

(1) By definition, if the law provides no remedy, there is no legal recourse; I meant the law mandating the requirement, not "all law".

It's possible that there's another law dealing with the execution of duties, similar to "honest services fraud".

I'm not saying that it exists, but I disagree that it's impossible by definition.

I do take your second point, though.

> It's possible that there's another law dealing with the execution of duties, similar to "honest services fraud".

I was taking that as a case of the law providing a remedy for the offense in question, as part of some more general provision, so I think that our disagreement here is mostly just semantics rather than substance.

Abuses of law by those in power (including the power of making laws) are only punished after popular protests (and sometimes take full popular revolt).

There's no reason it won't happen repeatedly. In fact it has been happening since at least Hoover's years...

The remedy for illegal search is that evidence obtained through the illegal search is excluded at the defendant's trial.[0] That's all you get.

In short, if this isn't punished, why won't it happen repeatedly?

It isn't punished, and it does happen repeatedly.

[0] https://en.wikipedia.org/wiki/Exclusionary_rule

At least in law enforcement, the punishment comes in the form of being turned over for promotion and ultimately fired for wrecking the States case. It takes longer for some, but not make your numbers for long enough and you're fired.

You don't stop things like this when they're legal or maybe legal. There is no "Maybe it was illegal" It was, or it would have continued.

Shouldn't that Riverside County judge be under scrutiny here as well as the prosecutors? Judges have to sign off on these things.

Sounds like season 5 of The Wire...

It might get easier for law enforcement in the future.

A bill by US lawmakers, set for release in March, could require encrypted devices to be able to give un-encrypted data to law enforcement. Feinstein says the bill is "coming along ... some people are making it a lot harder than we think it needs to be". An alternate proposal is also on the table


I wonder how many people are sitting in a cell due to this?

as many tobacco and fast food company CEOs are sitting on a beach

I was extremely surprised to see the reporting done by my hometown paper, The Desert Sun, as it's not exactly a nationally renowned paper.

If it was illegal, will anyone go to jail? Also, is it happening in any other locales?

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