Parallel Construction Reviews (Office of National Drug Control Policy)

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