The Fourth Amendment is clear that the government can’t search our persons or property without a specific warrant permitting the investigation.
So what do you do if you’re the Drug Enforcement Administration (DEA) and you want to rifle through innocent Americans’ mail and luggage without bothering with all that annoying Constitution stuff?
Well, a Justice Department (DOJ) audit of the DEA released this fall reveals that the federal agency decided to skirt that pesky Fourth Amendment by bribing citizen “volunteers” to rifle on their behalf. Buzzfeed News reports (emphasis added):
Department of Justice investigators spent two and a half years investigating the DEA’s confidential source program and released their findings in September. They uncovered a system rife with problems.
In one case, a DEA source working for a package company would rummage through private mail in the hopes of finding bundles of cash he could turn in for reward money.
In other cases, TSA employees working the X-ray machines at travel screening points would tip off the DEA about suspicious packages for cash, rather than report to their own superiors.
It was all part of a program of what the DEA terms “limited use” confidential sources. In theory, these were tipsters who voluntarily handed information over to the DEA.
But in practice, federal investigators found that these sources had become a de facto arm of the agency. The informants did repeat business, were well-compensated, and took direction from the DEA on what information to pass on.
In some cases they made more money from the DEA than they did from their day jobs. Investigators found that one airline employee made $600,000 in four years while a parcel company employee was paid over $1 million across five years.
Now, what Buzzfeed doesn’t mention but the full DOJ report spells out is where the DEA got the $237 million it paid these habitual informants.
The DOJ defines the “awards” given to the DEA’s volunteer snoops as “Payments of up to $500,000 or 25 percent of the amount realized by the government from asset forfeiture, whichever is less, for information or assistance leading to a civil or criminal forfeiture.”
Civil asset forfeiture, of course, is when police or federal agents just steal your money or stuff on the grounds that they find you (or maybe your friend or relative) suspicious. Americans subject to this sort of seizure aren’t given any due process rights. They have no right to a lawyer or a day in court, and the burden of proof is on the forfeiture victim, not the government, to prove the money or stuff the cops took wasn’t used in any criminal activity.
So in an attempt to get around the constitutional problems with a federal agency snooping through millions of people’s mail and luggage, the DEA asked private citizens working at places like airlines and shipping companies to do the snooping themselves.
(In case you were wondering, yes, opening someone else’s mail or breaking into their luggage is a crime. The DEA literally got informants to violate the law so it could avoid violating the law.)
These volunteers were incentivized by the fact that they’d get to keep a portion of whatever loot they reported — even though, remember, they are reporting money belonging to people who have not been charged with or convicted of any crime.
So basically, all they had to do was hunt for a decent chunk of cash, tattle to the feds, and take a hefty cut of the profits.
To add insult to injury, the DEA didn’t even manage to run this unconstitutional scheme in a competent manner:
[T]he DEA did not keep full records of what they got from the program. While successes were logged, false searches and bad information was not.
The use of the program was widespread in the DEA. According to the federal investigation report, the DEA handed out $237 million to about 10,000 confidential sources over the five years, from 2011 to 2015. This includes $27 million to 477 “limited use” informants.
Yet, the DEA cannot conclusively say what it got in return.
“They did not keep records on what the overall success rate was. We don’t know, for example, whether they were batting 1.000 or batting .050. That’s a concern,” Horowitz told the Oversight Committee.
The one silver lining is that perhaps this incompetence will prevent the continuation of such an appalling system of unconstitutional snitches, but I can’t say my hopes are high.