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DEA Releases Two Heavily-Redacted Pages on Two-Decade Surveillance Program

November 22, 2016

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The Drug Enforcement Administration (DEA) released just three lines of unredacted text in response to the National Security Archive’s FOIA request for information on a phone surveillance program the agency ran for 21 years.

The Archive’s cybersecurity and intelligence expert, Dr. Jeffrey Richelson, submitted a FOIA request to the DEA last year for memos on the legality of the DEA’s phone surveillance program, known as USTO. The program was revealed in 2015 to have “tracked billions of Americans’ [international] phone calls” from 1992 until 2013 and was “a clear precursor to the NSA program.” The database captured “virtually all” Americans’ outbound overseas call records to as many as 116 other countries, even if the callers were not involved in any criminal activity.

The DEA recently released two documents on the legality of USTO, one page each, in response to Richelson’s request.

The first document is an August 8, 2013, memo on the “Suspension of [redacted] USTO Program.” The bulk of the document is redacted pursuant to FOIA’s Exemption 7; the unredacted text notes: “At approximately 9:00 p.m. on Friday, August 2, 2013, Deputy Assistant Administrator (DAA) Arthur A. Doty, received the directive to suspend the Drug Enforcement Administration [redacted] USTO Program from Deputy Administrator Thomas Harrigan.”

The second document is entirely redacted.

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The release is paltry (and we are appealing), but it is still more information than the DEA has previously released on the same subject. In 2015 the agency withheld all 38 pages of documents responsive to another of Richelson’s FOIA requests regarding the phone records program. In this instance, the DEA also cited a handful of FOIA Exemption 7 sub-clauses concerning information compiled for law enforcement purposes to withhold the documents, which were located by both the DEA’s Office of Chief Counsel and the Intelligence Division.

USTO is not to be confused with Operation Hemisphere, another DEA surveillance program that began in 2007 and was revealed in 2013 by The New York Times. Under Operation Hemisphere, the DEA and the Office of National Drug Control Policy paid AT&T, the only company identified to date as a participant, for access to an enormous database “that contains the records of decades of Americans’ phone calls” and “covers every call that passes through an AT&T switch – not just those made by AT&T customers.” The records supplied by AT&T go back as far as 1987 and are numerically staggering; approximately four billion call records are added to the AT&T database daily, and the records include information on the locations of callers. The scale and longevity of Operation Hemisphere “appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act.” A federal judge ruled in June of this year that the Drug Enforcement Administration’s explanation for withholding the names of companies and federal agencies involved in Operation Hemisphere from an EPIC FOIA lawsuit was “legally insufficient,” and ordered the DEA to either provide the records or specific reasons for withholding them. Courthouse New Service notes that “The judge also rejected the DEA’s argument that knowing which federal agencies used Hemisphere would help criminals avoid detection via the program.”

In addition to its phone surveillance programs, the DEA has also “initiated a massive national license plate reader program” that connects DEA license plate readers with local law enforcement agencies’ own plate readers around the country. The license plate program was revealed in 2015 thanks to a FOIA lawsuit brought by the ACLU.

Obtaining information on any of the DEA’s surveillance programs is notoriously difficult. In February 2015 documents released to C.J. Ciaramella and MuckRock showed that the DEA employs a practice known as “parallel construction” – construction of two difference chains of evidence – to “hide surveillance programs from defense teams, prosecutors, and a public wary of domestic intelligence practices.” In the same release, which outlines four “acceptable methods” of concealing sensitive sources that “Americans will accept (so far…)” including parallel construction, the DEA redacted all references to a widely-used “workable” method by citing, yet again, Exemption 7. As Shawn Musgrave points out, “To reiterate, the DEA redacted the name of a method its trainers and legal auditors deemed not only constitutional but also palatable to the public.”

These practices, combined with blanket FOIA denials and anemic releases, help ensure that the DEA remains even less transparent than its intelligence community counterparts.

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