Parallel Construction Reviews (Department of Justice, Office of the Inspector General)

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

In August 2013, Reuters reported that the DEA's Special Operations Division distributes tips from NSA surveillances to federal, state, and local law enforcement agents for use in their domestic criminal investigations. See http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805.

Identifying which criminal prosecutions involved those tips is critical to our system of justice. Myriad judges, prosecutors, and defense attorneys have stressed that without knowing whether an investigation involved NSA surveillance, defendants might be shielded from what they are legally entitled to: exculpatory evidence and the opportunity to challenge likely-unconstitutional surveillance deployed in their cases. Id.; see also Brady v. Maryland, 373 U.S. 83, 87 (1963); Klayman v. Obama, No. 13–0881(RJL), 2013 WL 6598728 (D.D.C. Dec. 16, 2013).

Moreover, in failing to disclose this information, the Government circumvents Congress's wish that a defendant be on notice when NSA surveillance is involved in his criminal prosecution. 50 U.S.C. § 1806.

Four methods of sharing intelligence-community information with the DEA are listed in a January 2014 FOIA production by the DEA. The first involves CIPA, the second involves a Supreme Court case from 1938 called "Scher v. United States," the third involves FISA, and the fourth is termed "parallel construction." See January 2014 DEA FOIA Production, https://muckrock.s3.amazonaws.com/foia_files/1-23-14_MR6434_RES_ID13-00541-F_1.pdf.

That FOIA production contains documents noting that: “The Government keeps close records of the use of these techniques to ensure that it can be proved to judges and/or oversight personnel from Congress or the administration that the defendant is was not unlawfully or unconstitutionally disadvantaged by these techniques.” Id. at 33, 114.

I hereby request:

(1) Copies of those "close records";

(2) Records identifying the number of cases in which "parallel construction" was used and classified information was not disclosed to the defendant;

(3) Records identifying the number of cases in which "parallel construction" was used and classified information was disclosed to the defendant;

(4) Records identifying the number of cases in which the CIPA method was used and classified information was not disclosed to the defendant;

(5) Records identifying the number of cases in which the CIPA method was used and classified information was disclosed to the defendant;

(6) Records identifying the number of cases in which Scher v. United States was relied upon to share intelligence-community information with the DEA and that information was not disclosed to the defendant;

(7) Records identifying the number of cases in which Scher v. United States was relied upon to share intelligence-community information with the DEA and that information was disclosed to the defendant.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Avinash Samarth

Hello,

The DOJ OIG informed me that the attached request has been forwarded to your office. Acknowledgement of receipt and an estimated date of completion would be greatly appreciated.

Thank you very much for your help.

Director
Office of Information Policy
United States Department of Justice
Suite 11050
1425 New York Avenue, NW
Washington, D.C. 20530-0001

RE: FREEDOM OF INFORMATION ACT APPEAL, FOIA REQUEST 14-OIG-240

To the Director of the Office of Information Policy:

This is an appeal under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., concerning the Department of Justice, Office of the Inspector General's ("DOJ OIG") response to FOIA request 14-OIG-240.

In the request, dated August 21, 2014, I sought records used to keep oversight of the Drug Enforcement Administration's ("DEA") techniques of implementing intelligence-community information into its investigations by shielding some of its initial sources for criminal investigations from judges and/or the public. FOIA Request from Avinash Samarth, MuckRock to DOJ OIG (Aug. 21, 2014) [hereinafter "FOIA Request"].

In the request, I explained that a prior DEA FOIA production released to MuckRock in January 2014 had described several of these methods by which the DEA shields initial sources for criminal investigations from judges and/or the public in order to use intelligence-community information in its investigations. Id. (citing January 2014 DEA FOIA Production at 158, https://muckrock.s3.amazonaws.com/foia_files/1-23-14_MR6434_RES_ID13-00541-F_1.pdf).

Those methods were: (1) “parallel construction”; (2) a method relying upon the Foreign Intelligence Surveillance Act (“FISA”); (3) a method relying upon the Classified Information Procedures Act (“CIPA”); and (4) a method relying upon a Supreme Court case, Scher v. United States. Id. at 143-58.

In August 2013, the White House acknowledged that the Justice Department was reviewing these techniques. Kevin Johnson, Justice Department Reviewing DEA's Shielding of Sources, USA TODAY (Aug. 5, 2013), available at http://www.usatoday.com/story/news/nation/2013/08/05/justice-dea-special-operations-shield/2620439.

The DOJ OIG has done the same. On its website, the agency notes that it is:

examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.

Office of the Inspector Gen., U.S. Dep't of Justice, USDOJ/OIG | Ongoing Work: DEA (Nov. 2014), http://www.justice.gov/oig/ongoing/dea.htm.

In light of this evidence that the DOJ OIG is reviewing the DEA's use of the techniques enumerated in the FOIA Request, I ask that you direct the DOJ OIG to conduct its search for responsive records again, and specifically look in any filing locations that would be related to its ongoing or past investigations as described by its website and by the White House in August 2013.

Thank you very much for your attention.

Sincerely,

Avinash Samarth
MuckRock News