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Comment by zeteo | Hacker News Reader

Secrecy in law enforcement is contagious precisely because it makes things so much easier. Kafka's "Trial" was a nightmare for the accused, but think how convenient it is for the authorities to not publicize charges or sentencing and to do everything on their most expedient schedule. As soon as it was decided that accusations of "terrorism" could be treated this way, the seed was sown. The programs and procedures developed by the "anti-terrorist" agencies will be readily used and copied by any other branches of law enforcement that have the ability to do so; this case is a prime example. So, if you thought Orwell was scary, say hello to Kafka now.

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Have a dose of snark:

You crackpot tinfoil hat-wearing kooks imagine all sorts of bizarro world stuff: the Bildeburgers, Skull and Bones, One-world elite conspiracies straight from the imagination of Dan Brown. I mean, how crazy do you have to be to think that every prosecutor in the US is conspiring with the DEA and the NSA, and that this has been going on for years without anyone noticing? You know what else? If you don't want to go to jail for drug smuggling, don't smuggle drugs!

What's that? The gov't admits it? I see. Well you know, nobody made the drug smugglers use a cell phone. There has never been any privacy expectation for business records! That's between the phone company and the gov't. These programs are lawful and they have been approved by every single congressman. They all agree unanimously. Don't like it? Get a different phone company!

The gov't needs this to protect our children from terrerrerrorism. Do you know how many terror attacks there would have been if they weren't working to keep us safe? No! Because they can't tell you; that would compromise the operations! The truth is that the vast majority of gov't agents are honest hard working people trying to keep your children safe. They should be celebrated as heroes. These disclosures only serve to harm the Motherland^H^H^H Homeland security. Now we'll have to just spend more taxes for new secret programs to replace the ones revealed by treacherous commie spies! /s

i have no idea what you are trying to say.

It's a poke in the eye directed at those statists and others who for years have been beating up on anyone who publicly acknowledged the possibility of any gov't conspiracy; usually by making comparisons to absurd examples, then sometimes claiming such things are normal or just, and or making false or illogical justifications.

There are real conspiracy theorists out there who are batsh*t crazy, it is quite difficult to tell which ones are actually reasonable. The illogical fallacious arguments are spewed from both sides of the debate.

Also, its possible to be a statist who is disgusted with the government's behavior; its not black and white as the libertarians would try to convince everyone is the case (the NSA is spying us...and we have to pay taxes!). Ya, some of us are pragmatic.

So without a better alternative, we are free to shake our finger at the gov without advocating violent revolution or even deep systematic change. The devil you know...

Of course, living in China gives me quite a different perspective on it all. The US could definitely do much worse, and it is important to stop going in that direction.

>There are real conspiracy theorists out there who are batsh_t crazy,

Yeah, but that doesn't mean they all are.

> it is quite difficult to tell which ones are actually reasonable.

Isn't that the truth. I used to work with a fellow who was absolutely paranoid about gov't surveillance. Some people might think he was a lunatic off his medication if you got him started talking about it. He was an Air Force avionics tech in the 1970's. Everything he ever told me about gov't surveillance has turned out to be true.

> The illogical fallacious arguments are spewed from both sides of the debate.

That happens at the extents of every political faction. Look at the debate surrounding Abortion/Gay Marriage/Drugs/Welfare

>Also, its possible to be a statist who is disgusted with the government's behavior;

I never considered that. I should have though. I can see no reason why someone who would identify as a Statist would be any different than a person from any other political faction. We're all people.

> its not black and white as the libertarians would try to convince everyone is the case (the NSA is spying us...and we have to pay taxes!). Ya, some of us are pragmatic.

I'd be a Libertarian if I thought it could work. And be fair, there are a lot of different folks in that particular faction too. IMO, those Johnny-come-lately post Koch Bros. Libertarians don't really count.

>So without a better alternative, we are free to shake our finger at the gov without advocating violent revolution or even deep systematic change. The devil you know...

I'm not sure what you're getting at.

>Of course, living in China gives me quite a different perspective on it all.

It does give one a different perspective. I lived there in '08 & '09 (though not full time).

>The US could definitely do much worse, and it is important to stop going in that direction.

I have a feeling it could be a _lot_ worse in the US, but that's no reason to accept the status quo. IMO acceptance of the status quo practically guarantees a pretty terrible outcome.

There are no false statements in the above.

I'd give you an upvote, but I've been so nice to you already. Do you really deserve it, they way you've treated me? I'm just a copper after all. I wouldn't know one end of an ID from the other. You'll have to take it up with our supervisor.

It's ^W^W^W, not ^H^H^H.

Are you sure? I'm happy to be corrected if I am missing something. I'll admit I don't know the origin of this convention; but I don't understand how the caret code for "End Transmission Block" makes more sense than the one for "Backspace".

https://en.wikipedia.org/wiki/ASCII#ASCII_control_code_chart

NERDS!!!!

Control-w deletes the previous word in Bash and in vi insert mode.

I believe, at least in Linux, the canonical line disipline also does ctrl-w. Pretty sure that behaviour isn't POSIX though.

TIL ...

Control-W for ‘delete word’ entered Unix in BSD 4.x, along with changing to ^U for line erase (Bell Labs used ^X), ^R for refresh (consensus has reverted to ^L), and ^T for status (which Linux annoyingly still doesn't have). These came from Tenex / TOPS-20, which also had a fancy command completion scheme whose vestiges can be seen in ftp(1) as well as Cicso gear.

Job control (with ^Z and ^Y) entered at the same time. At least Linux/SysV saw the usefulness of that....

Ah, excellent! Good to know that it is more ubiquitous than I suspected.

(The lack of ^T on Linux really annoys me too. What is worse is that it isn't just a matter of the line discipline sending SIGINFO for ^T... because Linux doesn't have SIGINFO at all. Means you can't even really hack up a pty wrapper program that emulates it, unless you are willing to have everything use a different signal in lieu of SIGINFO...)

The Backspace key had the same scan code as Control-H, so ^H is what you would see when you typed Backspace on a misconfigured TTY (instead of it deleting the previous character).

Control-W is what you use to delete the previous word (Edit: word, not character), so ^W is what you would have seen on TTYs/Editors that didn't support that command.

Nice piece of sarcasm, there.

For anyone who missed it, that was written in the style of The Trial.

Secrecy in law enforcement is problematic, but the secrecy here is less pervasive than you imply. The crimes people are being charged with here are public. The trials are public. Critically, the evidence is all public, and the chain of custody of all evidence in these cases appears to be public as well.

Instead, what's alleged here is that the DEA is provided with enough information from intercepts to "always be in the right place at the right time".

This kind of evidence --- legit evidence traceable to illegit sources --- would be excluded if it involved torture, but apparently the jurisprudence hasn't caught up to its use in unlawful surveillance.

"The trials are public."

Actually, there mostly are no trials at all.

As the article states, "most drug-trafficking defendants plead guilty before trial"

One has to wonder if a "justice system" in which the majority of convicts have never even had a trial is worthy of the name.

I find wildly erratic punitive sentencing for accused offenders who choose to go to trial alarming.

But I'm not alarmed that the majority of offenders plea out.

Trials are enormously expensive, and, in a coldly rational statistical sense, most of the accused are in fact guilty --- the fact patterns in many of these cases and the evidence supporting them are very straightforward. That there would be some incentive for the accused to spare the system the expense of litigation doesn't bother me, especially because the more resources get freed up from pointless controversies, the more resources are available to handle meaningful ones.

So, I think we agree that there's a problem, but not what its causes are.

Either way: plea out or not, these cases don't get brought without "untainted" evidence. The problem is that the DOJ's definition of "untainted" is subtly broken. "Fruit of a poisonous tree" is a good Google search to follow up on this.

Whether it goes to trial or not, whether the evidence is untainted or not, the primary problem with the war on drugs is the extrajudicial punishment system that is seizure of property on mere suspicion. Giving the DEA tips is paramount to simply declaring that anybody you dislike is no longer part of American society - and there's very little recourse, just as with the no-fly list.

I'm still not sure how it has come to pass that Americans simply blithely accept all this.

This comment mixes up too many issues (the war on drugs, civil asset forfeiture, the DEA intelligence program from today, the no-fly list) for me to respond to. Some of these programs are much more problematic than others, and they're not actually all related.

If you wanted to find a quick way to synthesize a dispute where none needed to exist, taking a shotgun to the whole of American criminal justice would be one way to accomplish that.

> the war on drugs, civil asset forfeiture, the DEA intelligence program from today, the no-fly list

They're all related. They're all policies and actions of overly zealous bureaucrats with too much power and little to no accountability.

They're not related. For instance, the problem with civil asset forfeiture is financial incentives; the problem with the war on drugs was a single major public policy error, &c.

They're related in their origin.

If 4 different terror operations were coming from Al Qaeda affiliated cells, we'd say they were all Al Qaeda related. If 4 different drug dealers were busted that were all being supplied by one source, we'd call it a drug ring.

All of the operations mentioned - the war on drugs, civil asset forfeiture, the DEA intelligence program from today, the TSA - are a ring of government operatives that are terrorizing, robbing and imprisoning Americans.

Asset forfeiture can make it impossible to hire a competent defense atty, investigators, experts, etc.

Huh. I hadn't thought to be accused of manufacturing a dispute, and I note that you seem to have done just fine responding.

I suppose my point was that there is an underlying cause here, of encroaching authoritarianism in American jurisprudence that I find both alarming and surprising, but if you feel threatened by that, then by all means feel free not to take it as delivered to your address.

> in a coldly rational statistical sense, most of the accused are in fact guilty

Without a trial, how do we know that?

If I am accused of something terrible, of which I am innocent, but a plea bargain gets me back to my family in N years instead of Never (or 10*N), I'm likely to lie and plead guilty. We've seen that the government doesn't merely use plea bargaining as a cost reduction tool, but rather as a very large hammer with which to ensure that people get punished in extreme ways.

While there are good police and prosecutors, as a system they are driven to increase convictions rather than to find the _guilty_. Given the chance, they can find something to convict nearly anyone of, and guilty verdicts can be nearly guaranteed against even people who are innocent by heaping up enough charges that either defense is too expensive or the penalty of losing at trial too large.

You absolutely don't know that someone is likely to be guilty in any specific case. It's a statistical, macro-lens point.

The DOJ's definition isn't "subtly" broken. It is completely a willful attempt to circumvent established law and precedent with a very convoluted trail of reasoning. Also not sure if this is really DOJ's definition, or certain branches of law enforcement.

In many countries you cannot plea out. Everything has to reach court, and I as living in one of these countries think is a good think. This prevents extortion and bullying by prosecutors. Your sentence should not depend on your skills at negotiation and knowledge of judicial processes.

What are some of those countries? Let's be specific and see if we can generate an apples-apples comparison.

I know for sure Sweden but I think most civil law countries lack the concept of a plea bargain, which means most of world. For example France introduced limited plea bargains first in 2004.

https://en.wikipedia.org/wiki/Plea_bargain#Use_in_civil_law_...

Edit: Seems a bunch of civil law countries have introduce plea bargains the last 15 years, but before that almost none of them had it. This makes it a bit hard to find a concrete list of examples since almost all hits are about the countries introducing it with little discussion about why some countries do not do the same.

In a coldly rational sense, the shape of the legal system contributes to the cultural context that informs the future actions of the courts and their apparatus.

True, if primary cause isn't challenged the legal system doesn't consider antecedents as evidence; but the courts only make decisions - they have no input into the consequences of those decisions, other than the making of them.

I am not advocating that people look at the entire justice system through a lens of cold rationalism, but projecting a single observation through that lens.

I'm not disagreeing with your observation - just making one of my own. I happen to think they're mutually informative.

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."

How do you reconcile this allegation with your statement that "the evidence is all public" and the "chain of custody of all evidence" is public? It appears that what is being described is a secret, shadow set of evidence, that in fact is not made public in any way, shape, or form.

You've misread the Reuters story. These cases start with "tips" based on excludable intelligence, but the DEA then diligently works to build evidence that isn't excludable. The excludable intelligence allows the DEA to "always be at the right place at the right time", but isn't (for instance) used as probably cause to effect searches.

(I still think this kind of evidence gathering should still be excludable, as it no doubt would if the root of the investigation was torture and not foreign intelligence).

Does this not fall under the fruit of the poisonous tree doctrine?

http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

Hopefully, but maybe not:

https://news.ycombinator.com/edit?id=6160671

From what I gather in this explanation, if the DEA has unusable evidence, they can still springboard it to finding evidence that would be admissible in court? Is that true?

So, effectively, despite the fruit of the poisonous tree doctrine, there isn't real, persistent transparency going back more than a step or two in the evidence gathering process. It's more like judging immediate evidence on its own, without questioning the steps that lead up to its (otherwise valid) finding?

Yes. It's a grey area. I happen to think it's on the black end of the spectrum. But it's not literally black; they're not introducing secret evidence, or even using secret evidence as the probable cause basis to effect searches.

Right. A good counter to this would probably be requiring law enforcement to submit a report of all evidence, admissible and inadmissible, with a report of how it was found.

If that's done, the only obstacle left would be corruption and deliberate lack of fidelity (a big only, but still an improvement).

It's beside the point to be talking about fruit of the poisonous tree because it would never even come up at a trial - as far as the defense knows, the investigation started with a traffic stop. They don't know the true reason for the stop so they can't challenge its constitutionality.

In fact, secret evidence is used as the probable cause basis to effect searches, but the government is playing a neat trick where instead of admitting it's secret, they're just substituting the secret evidence with some innocuous basis for a traffic stop ("driving erratically", "changing lanes without indicating", etc.) that in reality never would have come up if not for the secret evidence.

Secret information is motivating the search, in the same sense as a bias against African Americans could motivate a similar search, but the actual probable cause that forms the basis for the search --- the from-first-principles reason for the search --- can't be that secret information.

I agree that not informing the accused of the application of secret information is one of the multiple problems with this program, which just to be clear I do not support.

Not in the same sense. From the article:

    A former federal agent in the northeastern United States who 
    received such tips from SOD described the process. "You'd be 
    told only, ‘Be at a certain truck stop at a certain time and look
    for a certain vehicle.' And so we'd alert the state police to find 
    an excuse to stop that vehicle, and then have a drug dog search
    it," the agent said.

They are stopping vehicles with the only probable cause being an illegally obtained tip and then they are hiding the illegally obtained tip.

The car still must be stopped for some lawful reason (speeding, broken tail light, &c) and the pivot from traffic stop to car search must still be based on some articulable probable cause that isn't secret information; for instance, drugs in plain site, or arrest warrant.

Those sources of 'probable cause' are trivial to credibly fake without consequences when you've got the strong tip (and already lying about the true reason for your suspicion).

The car "drifted" or "failed to signal a lane change" or "failed to maintain a safe following distance" or "moved suspiciously as the patrol-car neared".

The officer "smelled something". The driver was "acting weird", or had "bleary eyes" or "droopy eyelids". A drug dog smelled something (which could just be (a) the dog didn't but the officer says it did; (b) the dog follows a subverbal cue from the officer; (c) the dog reacts to traces planted by the officer.)

Once the actual search succeeds, the flimsiest fabricated "probable cause" that was "parallel-constructed" will pass muster. So the defense that such searches "must still be based" on something legitimate isn't very convincing. Once you've already been coached to cover-up the true source of information, what's one more "white lie" to catch a "really bad guy"?

If that was true, then we'd all be searched at every traffic stop, and there would be no point to the (excellent) ACLU videos on what to do if you're stopped by a police officer.

But in reality, the sources of PC sufficient to search a car aren't all that easy to credibly fake. Can they be faked? Certainly. Trivially? With the possible exception of drug dogs (which bother me a lot more than this program does), no.

It isn't necessary to credibly fake PC, though it is easy (see link above). An officer could believe they were correct in their suspicion and their actions would have that bias. Combine that with a mindset of "the ends justify the means" and there is little that would stop many officers from an outright lie in order to achieve their goal.

The officer can believe whatever they want, but if they can't document in court the actual probable cause that generated the search, the evidence from that search is excluded. Probable cause is not as simple as "the officer says they believed the motorist was probably guilty".

>Probable cause is not as simple as "the officer says they believed the motorist was probably guilty".

That is naive. The bar for documentation is the officer's own recollection or a written report based upon their recollection. Officers receive training on how to obtain PC, and how to subsequently pivot to full searches. SCOTUS has granted wide latitude WRT such techniques.

State vehicle codes are written to provide law enforcement officers ample opportunity to establish probable cause to initiate a traffic stop when an individual is suspected of having committed, or about to commit, a crime other than the infraction of the vehicle code.

http://www.lawofficer.com/article/magazine-feature/probable-...

You've confused the cause required to initiate a traffic stop with the cause required to search the contents of the car. They are not the same.

I'm not confused. I'm trying to explain to you that the distinction you make between the two is practically meaningless. Even a dim-witted cop can figure out a way to get in your car for a search; you don't stand a chance against a competent one.

That such police subterfuge can't be used for bulk dragnets where "we'd all be searched" is irrelevant: there, it'd be obvious (when the followup search usually fails) that some fishy overreach is happening.

In this particular surveillance-tipped condition, you are asserting there's still some useful check from the necessity of "articulable probable cause". But because of the strong (and legally out-of-band) tip, very few searches are necessary, the searches always succeed in finding contraband, and the only contrary witness to the flimsy smell/dog/eyes/joint-on-the-seat probable-cause rationale is the suspect himself -- whose credibility is shot by the successful find.

That's what makes the phony 'probable cause' tricks trivial in these cases, and your reassurances hollow.

And once the authorities have started down the road of deception of the courts to get a conviction, it's only a small additional step to planting the drugs/guns/porn. "The NSA/DEA-SOD has assured us this is a very bad guy, but all the evidence of that is non-admissible. So let's just 'parallel construct' another incriminating scene from what's handy."

Explosive- and drug-sniffing dogs' performance is affected by their handlers' beliefs

UC Davis study finds detection dogs may exhibit the "Clever Hans" effect

http://www.ucdmc.ucdavis.edu/welcome/features/2010-2011/02/2...

He didn't misread the story at all, what on earth are you talking about? The government is hiding the initial evidence. That means it's "not public". You are wrong.

No one but you thinks it's OK to start investigations with "tips" based on excludable evidence. The rest of us literally consider that something we are protected from by the Bill of Rights. Investigations handled according to the excerpts in the article are precisely what we consider to be disgusting and evil.

Most of us do not support the government trying to find loopholes in the Bill of Rights. We want the government to follow the constitution not only technically, but in spirit.

None of this is responsive to any point I made. Not only that, but your comment misrepresents all the points I made, for instance by asserting directly that I support the program. It is thus hard to find anything to respond to in it.

You claimed he misread the story. He did not. The government is using illegal evidence as probable cause and then lying and saying something else is probable cause. That is, the real probable cause, the thing that actually turned them on to these suspects, is made "not public". It doesn't get much more "responsive" than that.

Yes, I see that you claim to not support the program. It's hard to tell with how vigorously you are defending indefensible aspects of the program and seem to support parts of it on legalistic grounds when the issues at stake are legal AND moral. You continue to parse the posted article in an odd way that gives huge benefits of the doubt to the government when it would appear to deserve none.

You don't understand the point I was making, or have seized on a part of the conversation where there's enough ambiguity that it's easy to jump in and generate faux outrage about.

Meanwhile, your comment is yet another instance† of someone not being satisfied that we agree that the program is bad, but instead demanding that we find it bad for exactly the same set of reasons. Again: case in point for why HN is a terrible venue for political discussions.

Incidentally, you might do better than "yes, I see that you claim not to support the program" [em: mine] when in effect admitting that you were not only wrong, but wrong in the entire premise of your response to me.

† https://news.ycombinator.com/item?id=6160951

I'm not sure the point you were making was entirely clear. Having read the article, and your replies, I don't see how the original poster misread the article.

It's entirely possible that I don't understand the situation. Could you rephrase the reason you believe the original poster was wrong? i.e. That the evidence trail is public.

Again: the "evidence" gleaned from tip-offs from unlawful surveillance can't be introduced into court in any fashion; for instance, it can't be the stated cause of a search, which must still be justified from first-principles by some defensible claim of probable cause.

It's a shadow, secret set of facts, but it isn't evidence and can't be used as such.

And, to be clear: I think the program is bad news and don't support it. But my reasons are probably different from those of many other HN readers, and have more to do with precedent (I think if we're going to do extensive foreign SIGINT --- and, sorry, we just are going to do that --- we should at least firewall it off from domestic law enforcement).

But the point you keep missing is that you're placing trust in an entity which is accountable to no one.

No, I haven't done that at all.

Suppose we take it to the logical extreme:

1. Monitor absolutely everything 2. Place yourself in the right place 3. Book people for what you're able to stop them for

Isn't there some law or legal doctrine that prevents this sort of police omniscience? Everyone is guilty of some infraction.

In other word, doesn't the law require that police show what led them to stop a person, not that the stop was legal according to one condition.

It seems like the real probable cause is being hidden.

I don't actually know the answer to this, it's a serious question.

The police had every reason to stop you: you failed to signal a turn (or you did not come to a complete stop at a stop sign, or you were speeding, or any number of other violations).

The real problem here is that there are far too many laws, which has led to a situation where the police can find a "legitimate" reason to arrest/search anyone. There is also the matter of victimless crimes (like possession of certain drugs), which can turn minor infractions like speeding into 20-year prison sentences. The massive increase in police budgets and power over the past few decades added fuel to the fire, but we were in trouble from the beginning.

>I think if we're going to do extensive foreign SIGINT --- and, sorry, we just are going to do that --- we should at least firewall it off from domestic law enforcement

A personal question, sorry: legality and constitutionality aside, are you comfortable with ample surveillance of other countries? If so, why? From your posts on HN since the PRISM leaks, you've stressed NSA's mandate to spy on other countries. NSA exists and has this function, yes, but why is it acceptable for the US to spy on all foreigners?

Yes, I am, for a bunch of reasons, not worth going into here. The simplest response to this would be that broad surveillance of US citizens violates our Constitution, but surveillance of foreigners abroad does not.

It appears that you're happy to take the DEA informant at his word when he says "Pull over suspect X on Tuesday at location Y and get probable cause for a search for drugs" But obviously, there is no check on the power of the NSA/DEA/etc. here; and that makes the scheme as unconstitutional as anything that ever was, and ripe for abuse. One need not even don their tinfoil hat and allege made-up conspiracies[1], just consider the effect that selective enforcement with a racial bias would have, and then remember that minorities can't even get equitable treatment for the terms of their mortgages, and that most DEA/NSA types are socially conservative Whitey Whiterson types. Decades of this would give you feedback effects that might make people feel justified in their racial bias, and indeed there are people who argue in favor of racial profiling on the basis of the ratio of black:white &etc. prison inmates.

[1] Like John DeLorean, Angela Garmley, or those few moron terrorist/pizza deliverymen.

What are you talking about? No I'm not.

Please explain at what point the accused is allowed an opportunity to face & challenge the original accusation of wrongdoing (the secret accusation that was obtained by illegal surveillance).

The state is accusing you of a crime, and you have the right to confront the prosecutor. You can confront any witnesses brought against you. You do not have the right, and never have had the right, to confront every single person in the state who had ever heard about your case. You do not, for instance, get to summon the President or even your state governor to testify in your cases.

Once again: the information generated from this program does not generate evidence. It generates intelligence.

There is an evidentiary issue involved in the program, which is that it might generate exculpatory facts that the defended might want to introduce into evidence, which the defendant should have the right to discover. But that's (a) going to happen very infrequently and (b) isn't close to the biggest problem with the program, which, for the nth time today, I don't support either.

The sophistry isn't needed. If an NSA agent provides intel for use against a person in a criminal proceeding, he should have to explain his methodology, and the details of how the intel was obtained.

Consider this. Ptacek rents a car to travel from A to B. NSA/DEA/SOD tips off DPS officers to search Ptacek's car for drugs. Of course, they find drugs. At trial Ptacek's defense is "What drugs? I don't know anything about any drugs!" All the judge, prosecutor, defense knows is that you were pulled over, and you [consented, or PC was otherwise obtained] and lots of drugs were found.

Now, if the origin of the intel hadn't been concealed, Ptacek's defense atty could subpoena President Obama, sorry, I mean the SOD agent, who could testify as to the source of the intel. It might be discovered that there was no evidence to suggest that Ptacek was aware of the drugs concealed in his rental car. It might even be further discovered that hiding drugs in people's car without their knowledge is one of many ways that drug smugglers move contraband.

You completely miss the point of what it means to have a right to face one's accuser.

You're confusing discovery with confrontation. The discovery problem with this program has been acknowledged ad nauseam already.

> No one but you thinks it's OK to start investigations with "tips" based on excludable evidence.

That's a massive overstatement, as can be seen by noting that there is virtually no controversy over the anonymous tip hotlines that have been used for decades by virtually every police force in the country.

It's like "solving" the odd-numbered problems with the help of the textbook's answer key.

Wouldn't there be evidence that doesn't ever become public?

The idea was the NSA discovers a bunch of information about someone, then gives the DEA tips on where to look for evidence of lawbreaking. That way evidence is secret, because when the time comes to share evidence, the DEA has only looked in places to find inculpatory evidence. The superset of all evidence discovered remains 'off the record' with the NSA, and out of the hands of the defense.

No. The DEA knows things under this program, but deliberately does not introduce those things as evidence.

(One concern from this article that doesn't ring true to me, but maybe someone else can expand on, is the likelihood that this information is exculpatory).

If the information that they are acting on is closely linked to evidence of entrapment; or the sorts of grooming and radicalising tactics that the FBI has been known to use to create "domestic terrorists" from angry young men.

Then it damn well is exculpatory.

What rational person would argue that it was impossible for there to be secret exculpatory evidence in intelligence intercepts? That wasn't at all my point.

How does chain of evidence work in this case? If ill-gotten information leads to the discovery of evidence, does that poison the evidence?

Like if I tap a drug dealer's phone illegally, find out he's making a deal tonight at 8p, and "happen" to be there when the deal occurs, can the deal itself be entered into evidence, or no?

It "should" make the evidence excludable, but might not. Again, do some reading --- especially, if you can find them, law school articles --- on "Fruit of a poisonous tree".

Most obvious exception: if the actual introduced evidence comes from a drug deal that is done in plain site, where the accused is arrested with the money from a hand to hand or somesuch --- unlawful surveillance or not, the evidence from that arrest might not be excludable.

> but apparently the jurisprudence hasn't caught up to its use in unlawful surveillance.

How is that possible? Surely evidence that is obtained that is derived from an illegal search is inadmissible.

I think (repeating another comment) you've misread the Reuters story:

https://news.ycombinator.com/item?id=6160632

I haven't I was pointing out, as I see others already have, that the evidence in the subsequent search is tainted. But it seems there might be some technicalities for why it is not.

There's something a bit unsettling about the future when you discover that drug offenders have lately been tracked down and charged by the same means used for terrorists. But let's talk about the present. Would you find the scenario below possible in this context and, if so, somewhat worrying:

1. There's nothing that special about drug crimes. It's reasonable to suspect other enforcement agencies are plugged into the NSA databases as well.

2. Let's say that, through complete surveillance of his communications, the Anti-X agency discovers that John Smith has probably committed crime X. However, there is no other way to obtain evidence on the matter.

3. As many people in this country, John Smith also happens to be a drug offender. Anti-X arranges for the DEA to be at precisely the right spot and time where the offense occurs.

4. John Smith is now in jail for interrogation, and there's a search warrant for his home to (also) look for the evidence that Anti-X was missing before.

I agree, and the prospects for a sturdier pipeline between NSA and the DOJ is I think a good reason to ratchet programs like this way back.

(I'm less disquieted by the idea of DEA being at the right place at the right time; if that was the only implication of this program, I might be less bothered by it.)

I wonder what argument could be made for having any communication whatsoever between the two areas--how often does the DOJ deal with folks outside of the US, for example, thus "justifying" the use of NSA data sources.

I can see in principle why this isn't really justice. But in the example you gave, I have a hard time siding with John Smith.

Anti-X was able to indict him because they found evidence by using another agency - this seems intuitive and useful because they could not have ordinarily found it. If he genuinely committed the crime, they're not obstructing justice or even his privacy here, they're just being creative.

Strictly speaking, I don't really mind that agencies in the United States can do that, because it opens avenues to evidence they would not otherwise have. What I would mind is if law enforcement decided they could find admissible evidence by deliberately retrieving and opportunistically analyzing inadmissible evidence as a springboard.

I understand that those two can seem really similar, but I honestly believe the latter case is a much more serious violation - it just seems like a much more slippery slope to me.

That "avenue to evidence" that has been opened is illegal dragnet surveillance.

>I have a hard time siding with John Smith.

In principle, I don't care about John Smith[1] and I wouldn't advocate solely for the lawbreaker's sake. I'm advocating for innocent people whose rights are violated. Now, if this scheme were directed against a different class of criminal like theiving bankers or corrupt policemen; I'd feel better about the result, but not much. Along those lines, it is offensive to imagine that our supposed inalienable rights are discarded for something as pedestrian as drug offenses when it is clearly possible for some violent crimes to be stopped[2]. Note that I am not an advocate for that. But IMO it is an added insult that we're here living a version of Orwell's nightmare, having just begun to suffer its abuses, but because of the priorities of gov't don't receive the benefit of pervasive gov't protection.

On the ZOMG! slippery-slope angle, imagine just how abusive and corrupt an individual or small group of gov't agents can be when they are allowed to conceal so much of an investigation. One person, or a small group can completely frame an individual for a crime with relatively little opportunity for the accused to defend themselves.

[1] Personally, I am an advocate from drug legalization, but that's a separate issue.

[2] James Bamford alludes to the notion that NSA folk have had to observe some pretty terrible things in the course of duty. I don't envy them for it.

I agree completely, there have been many articles written on how Americans break laws all the time without knowing it (No, I'm not saying that buying/selling/doing drugs falls into this umbrella) and the government cannot possibly prosecute everyone from every crime. This allows the government to pick and choose who they prosecute. Lets imagine the following scenario which is very similar to the one above.

1. Person P smokes marijuana by themselves, doesn't sell, doesn't buy large amounts, "Personal Use" 2. 3-letter-agency ABC is pretty sure person P smokes through some text/call/email/web browsing/etc but has bigger fish to fry 3. Person P is an outspoken critic of government G (or just a supporter of something government G is not a fan of) 4. Government G runs a search on person P through their database and find that ABC is 85% sure this person smokes marijuana 5. Government G tips off local police that they might just want to stop person P's car on X date 6. Person P is now either imprisoned which will greatly hamper their efforts or scared into shutting up and keeping their head down

Now let smoking marijuana be swapped out for some other crime, something that "everybody does", like downloading a song/movie/app, or maybe it's even more minor but they decide to "Make an example of you". The example zeteo gave is very good but most people can write it off with "Well he WAS committing a crime" but if the end goal of the first stop (the "Foot in the door") was actually to censor the person then I think people would see more of an issue.

this is what i find wonderful about tptacek hair splitting posts - they lead discussion away from the main issue - illegal surveillance in this case - to minutae details like whether Stasi power to fight drug crimes can be [ab]used to fight other crimes.

Al Capone was arrested, tried, and jailed for tax evasion rather than all of the much more series crimes he committed. This approach to law enforcement has been going on for long time now, sometimes with good outcomes. I think the problem now is that (a) it's gotten much easier, (b) because it's easy it's being used more often for less serious crimes, and (c) it's being used to protect the power of the powerful rather than to protect the populace.

It was mostly because he was clever. He hired people that were loyal to do the killing/etc. So those people commited the crimes, and plead guilty every time they were caught. Al Capone could not be guilty of a crime someone else committed.

technically, the only place where he miscalculated was tax. so they got him for that. they didn't plant false tax evidence on him, as the NSA/FBI did recently with that guy that refused to join PRISM with google and others.

I think I'd feel ok if they used these tactics in the SEC.

The crimes being committed here by the DEA are equivalent to the following:

- Suspect is detained and harshly interrogated, rights violated, possibly tortured.

- Suspect signs confession

- Suspect is given a drug to wipe his/her memory of the torture/abuses.

- Suspect is convicted of crime he/she committed.

The specific law that is being violated is different, but the effect is the same, since one could argue that if the drug the suspect was given wiped away any memory of the mistreatment, it might as well not have occurred.

Wait, what? No, it's not like that at all. It's bad for an entirely different reason.

I agree that it's bad for a different reason, but it's bad in the same way. In other words, it should trigger the same "ick" response in our gut.

Honestly, you haven't presented a logical argument, or even a persuasive emotional one.

The goal of my comment was to present an emotional argument analog, not to create the best execution of that emotional argument.

There is a very subtle, insidious problem with this:

The fact is that this is a psyop - an operation used to legitimize the NSA dragnet in the minds of the world. They are "revealing" this issue to show how they are using the NSA data to "catch the baddy" - so therefore this program has value, RIGHT?

Its too late. This has gone too far. The United States of America is no longer united - it is "us" vs. "them"; it is the people vs the government in that the government is literally tracking everything everyone does. You cannot have freedom under those terms. They are mutually exclusive.

America is officially a police state, though it has been unofficially a police state for a long time.

The only observation this comment makes --- that use of foreign intelligence to help make domestic criminal cases helps validate the intelligence programs --- is blatantly wrong.

I don't think you understand how propaganda works. I also think you're an apologist.

Well that's super helpful, Sam.

I think I've stated my opinions on this matter very clearly. I also think its pretty clear we don't agree on these issues.

You have a solid grasp of what is technically being done, though I think you are less alarmed at what's already taken place than you should be given this.

The NSA is completely out of control and in a position to blackmail anyone, cut off and control the entire worlds communications and subvert anything they want.

The NSA and the USG are simply telling everyone that we should trust them to be the good guy, just because. While the government has already proven they will torture abuse and murder people with impunity.

These two things are incongruous - we can't have a political system that is proven to abuse and one that claims to be the moral good guy.

No matter how much we attempt to self-delude.

It's not enough for you that we agree that the program is bad. We have to agree for all the right reasons. This is a perfect illustration of why HN is a terrible place to discuss politics.

Here's why: we have a situation where, for once, we've landed on the same conclusion. We got there for different reasons. Instead of looking at that as a great opportunity to learn something new from our differing perspectives, it's something that somehow manages to piss you off. If political discussion doesn't work here, it's certainly not going to work anywhere else.

I'm not getting my wish that discussions like these simply be banned from the site, but maybe we could take a baby step towards civility by not calling people names.

First, I am in no way pissed off.

Second, I actually really enjoy talking about these things with you on HN.

Third, we both get emotional about things we discuss - I recall a thread between us ~2 plus years ago where we were in heated discussion!

And C) - these items are political - but entirely germane to HN as the whole thing is enabled by tech and techies "just following orders" and tech companies "just making more sales".

We are on a very slippery slope; nobody wants to live in danger, but everyone is in danger of government abuse with these programs.

Hey, just in the interest of thwarting a false equivalence: I haven't called you names. You have called me names, on this very thread. I'm not super offended and would still buy you a beer in person, but let's all be clear that we're not supposed to be doing that on HN.

You were never called any names. He said you were an apologist. In reading your postings, your comments do strike me as having an overtone of apology for the surveillance state.

In political matters - the power of government vs. the rights of the individual - most people will fall into one of the two groups as a basic mode of operation for their perceptions and personal philosophy. When governments become tyrannical, as the US government is now proving itself to be, the contrast between the two modes becomes starkly delineated.

Authority vs. Liberty is an ancient human argument that is obviously still being played out. Those of us with an unbreakable attachment to Liberty will see any arguments in favor of the current regime as apologia.

"You were never called any names. He said you were an apologist."

Well there you go.

I think you missed the rather insightful point he was making entirely.

The DEA's use of NSA intercepts "sounds" a whole lot more sensible (catching 'drug dealers') than what may be potentially 1000s of other horrific uses the government is also using this data for.

It absolutely does not sound more sensible for the USG to be focusing the tools of foreign intelligence on its own citizens for drug enforcement. I didn't miss his point; his point is wrong. Using foreign intelligence for criminal justice does the opposite of legitimizing foreign intelligence programs.

Where are you getting "foreign intelligence" from, not only in the article - but in relation to what I am talking about?

>a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.

So how is my point wrong? This is trying to prove that the secret use of NSA data to catch baddies is an important function of the program.

Important? Maybe. Legitimate? No. Legitim-izing? Absolutely not. Today's revelations make the NSA's programs even less legitimate.

Super helpful comment, tptacek

This glosses over the fact that "they", the government, is a hugely multi-faceted entity, the vast majority of which is benign in both purpose and operation.

There is only one "they" that matters in this context, the ones with all the power; the NSA.

Not precisely correct this bit: This kind of evidence --- legit evidence traceable to illegit sources --- would be excluded if it involved torture, but apparently the jurisprudence hasn't caught up to its use in unlawful surveillance.

Nominally private communications that are acquired without the benefit of a warrant, are excluded all the time. The notion of 'parallel construction' is antithetical to the presumption of innocence clause. Any conviction where it can be shown that the initial basis for investigation was acquired in this way and the evidence history had been "re-constructed" in order to avoid that taint, would be thrown out by any appellate court in the country.

No doubt there are motions being filed right now for such actions.

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