A government unit that compiles millions of phone and wiretap records and other information obtained by federal law enforcement, intelligence agencies and some foreign governments was used in the investigation of a Mexican drug cartel’s activities in Arkansas, a federal agent testified Friday.
The involvement of the Drug Enforcement Administration’s Special Operations Division was minimal in the investigation of Nishme Martinez, a U.S. citizen and defendant in the case, the agent testified.
But details about the extent of the DEA unit’s databases - and how that trove of information is used by federal agencies to investigate Americans - was laid out during a hearing presided over by U.S. District Judge Susan Webber Wright.
The hearing was held after Martinez’s attorney filed a motion asking Wright to order prosecutors to turn over any information about his client that the FBI had obtained from the DEA unit.
The attorney, David Cannon, accused prosecutors of withholding information about phone records the FBI received from the DEA unit regarding Martinez.
Cannon had also questioned whether the records were obtained without a warrant or subpoena and whether the unit’s involvement was intentionally left out of investigative filings turned over to him during discovery.
Federal prosecutors responded by saying that the records were obtained using an administrative subpoena - legal instruments issued not by a court but by agencies such as the FBI - and that none of the records obtained from the Special Operations Division were any different than what was already turned over to the defense.
Still, Assistant U.S. Attorney Chris Givens told Wright that the government would voluntarily turn over records for two phone numbers for which agents requested information from the Special Operations Division.
Givens’ offer led Wright to rule Cannon’s motion moot.
In her ruling from the bench, Wright said she wasn’t taking up the matter of whether the Special Operations Division’s records were required to be disclosed to Martinez under federal court rules of discovery.
But she acknowledged that the unit’s records fell into an area of the law that requires judges to weigh the right of criminal defendants to know the evidence against them and the government’s need to keep certain investigative information confidential.
“I know that this is a delicate balance,” Wright said.
The judge, who also serves on the 11-member Foreign Intelligence Surveillance Act court, noted during the hearing that she had “never had a hearing like this before.”
The court, which operates largely in secret, has authority over wiretap requests for phone calls and email communication on foreign intelligence targets, including communication between U.S. citizens and residents of other countries.
Whether Foreign Intelligence Surveillance Act courts are provided enough information about the targets of government surveillance has been debated in recent years, particularly after classified information about the government’s surveillance apparatus was leaked by former National Security Agency contractor Edward Snowden.
On Friday, Wright’s ruling came after a hearing in which FBI Special Agent James Woodie testified about how the DEA Special Operations Division was involved in his investigation of Martinez.
Martinez was arrested last spring and indicted along with 16 other defendants on a charge of conspiracy to possess cocaine with intent to distribute. She is the only defendant in the case who has raised questions in court filings about the Special Operations Division’s involvement in her arrest.
Federal agents have accused Martinez, who is also known as La Gorda, of transporting drug money for a cocaine-trafficking ring headed by her mother, Idalia Ramos Rangel, a Mexican citizen and federal fugitive. Rangel is believed to be a high-ranking lieutenant in the Gulf Cartel and living in Matamoros, Mexico, near the border with Texas, where Martinez lived.
According to court testimony, a large part of the federal investigation into the drug ring was based on phone calls, recorded by the federal Bureau of Prisons, that were made by Rangel’s son, who is a federal prisoner.
On Friday, Woodie testified that agents obtained some of Martinez’s phone information from the prison calls as well as other information provided by the Department of Homeland Security.
Agents obtained a subpoena for her phone records from her telecommunications provider, and Woodie testified that he requested information on the phone records from the Special Operations Division.
Under Cannon’s questioning, Woodie explained that the DEA unit serves as a portal to access various databases of nearly all of the major federal law enforcement and intelligence agencies such as the DEA, NSA, FBI, CIA, the Homeland Security Department and U.S. Marshals Service as well as “foreign governments” and local agencies such as the New York City Police Department.
The Special Operations Division serves as a central point for various agencies to find out whether evidence in one agency’s investigation is connected to evidence obtained by other federal agencies in their investigations, the agent testified.
Most of the information in the databases was obtained by court orders or subpoenas in other investigations, he said.
That includes phone call data referred to as “toll records,” which show the phone numbers and length of calls made to and from a phone but don’t include the content of the calls.
In Martinez’s case, Woodie testified that he had already obtained toll records regarding Martinez’s phones and entered that information into the FBI’s database before he requested information from the DEA unit.
The information he received back from the DEA was the same information he’d entered, he said.
“What we put into our own system is what we got back from SOD,” Woodie testified, using the initials for the DEA unit.
Under questioning, Cannon asked Woodie if he had created any written record of the information he received from the DEA unit. Woodie replied that the FBI doesn’t make any written records of its contacts with the DEA unit. Instead, that communication was passed along orally.
“Is there a reason for that?” Cannon asked.
“Because of the classification of the information that could or could not be in those records,” Woodie said.
Some of the questions Cannon posed mirrored those raised in a report last August by the Reuters news service. The news service reported that internal documents, confirmed by former and current federal agents, showed that the Special Operations Division compiles information that includes overseas intelligence reports, records of domestic and foreign wiretaps and informants and an enormous phone-call database that contains about 1 billion records.
Reuters asked for the DEA’s internal reviews of the Special Operations Division but was denied. But in cases involving intelligence agencies, including those of foreign governments, federal agents told Reuters that those agencies work to determine the citizenship of a target of no-warrant wiretaps before sending that information to the Special Operations Division.
The screening is meant to keep the unit from receiving any no-warrant wiretaps of Americans, which is against the law.
Reuters also reported that the DEA unit directs federal agencies to leave out the unit’s role when they fill out investigative affidavits or testify in court. Instead, federal agents are encouraged to construct a separate chain of evidence and then cite that secondary chain to justify how they were led to a particular criminal defendant, according to Reuters.
The practice of creating a second chain of events - known as “parallel construction” - is supposed to be used in writing investigative affidavits, court testimony, and at times, even in conversations with prosecutors, the news service reported.
Since the report’s publication, legal scholars have questioned whether the practice violates the constitutional right to a fair trial by not allowing defendants to know the true origin of the evidence against them.
But federal officials have defended the program, saying it has been invaluable in major sting operations, including the DEA operation that nabbed Russian arms dealer Viktor Bout in Thailand in 2008. In congressional testimony, top leaders of the unit also have pointed to the unit’s necessity in combating a growing interconnection of terrorism and drug-trafficking worldwide.
Last August, Cannon broached the subject of parallel investigations with Woodie, an experienced drug-trafficking investigator who has been with the FBI for 16 years.
“Did you build a - or what do they call it, a parallel investigation based on those interceptions?” Cannon asked, according to a public transcript of the hearing.
“Based on those - those interceptions, there was no collateral or parallel investigation that would house any other documents. Everything has been original to this investigation,” Woodie replied.
Front Section, Pages 1 on 03/15/2014