August 5, 2013
After Reuters report about secret DEA group, should every federal drug prisoner now file new Brady claims?The question in the title of my post is my first reaction to this exclusive new Reuters report, which is headlined "Exclusive: U.S. directs agents to cover up program used to investigate Americans." Here are excerpts:
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.
"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers. "It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."
The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.
Today, much of the SOD's work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked "Law Enforcement Sensitive," a government categorization that is meant to keep them confidential.
"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."
A spokesman with the Department of Justice, which oversees the DEA, declined to comment. But two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily.
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. 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."
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned. "It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.
Some defense lawyers and former prosecutors said that using "parallel construction" may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants. "That's outrageous," said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. "It strikes me as indefensible."
Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin "would not only be alarming but pretty blatantly unconstitutional." Lustberg and others said the government's use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant's identity or classified evidence, to determine whether the information is relevant to the defense.
"You can't game the system," said former federal prosecutor Henry E. Hockeimer Jr. "You can't create this subterfuge. These are drug crimes, not national security cases. If you don't draw the line here, where do you draw it?"...
The SOD's role providing information to agents isn't itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court. The DEA has long publicly touted the SOD's role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don't accidentally try to arrest each other....
Since its inception, the SOD's mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit's annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.
Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE. The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said....
As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.
Current and former federal agents said SOD tips aren't always helpful - one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away. "It was an amazing tool," said one recently retired federal agent. "Our big fear was that it wouldn't stay secret." DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.
August 5, 2013 at 02:00 PM | Permalink
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Remind me, who is it who's always here bashing defense lawyers for obfuscating the truth?
Posted by: The Death Penalty Sucks. | Aug 5, 2013 2:42:12 PM
If the DEA has the DICE database, I wonder if the DEA has access to the NSA's XKeyscore tool which allows the NSA to sweep up a person's email, website searches and metadata with just a person's name or telephone number or email address. See,
Posted by: ? | Aug 5, 2013 2:57:44 PM
"It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."
So this explains how our elite think, eh. The difficultly with this position is that there is no principled distinction between "ordinary crime" and "national security". The distinction is always a practical one based on transitory self-interest, which is inherently arbitrary and capricious.
Posted by: Daniel | Aug 5, 2013 4:09:31 PM
"Remind me, who is it who's always here bashing defense lawyers for obfuscating the truth?"
Remind me, who is it who's always here telling us that we can't decide guilt based on press reports?
P.S. If you want to take the position that no defense lawyers obfuscate the truth, you go right ahead.
Posted by: Bill Otis | Aug 5, 2013 4:28:51 PM
Bill can question the accuracy of "press reports" all he wants. The DEA and otehr federal agents quoted (anonymously) in the story, however, don't question the accuracy of the report. They simply defend the legality and appropriateness of the program itself. I wonder if Bill will do the same.
Posted by: Anon | Aug 5, 2013 4:33:05 PM
"Bill can question the accuracy of 'press reports' all he wants."
Now why would I do that? I mean, we all know that press reports are sure to be accurate, right? Like the NBC report on how George Zimmerman spontaneously identified Trayvon Martin as black? Except that the media doctored the tape? Is that the press you're talking about?
"The DEA and otehr federal agents quoted (anonymously) in the story, however, don't question the accuracy of the report. They simply defend the legality and appropriateness of the program itself."
You mean what the writer and editor(s) CHOSE TO INCLUDE simply defends the program. Do you know what was left out? Do tell.
"I wonder if Bill will do the same."
I'll wait for the drug pushers to file their Brady motions, as Doug suggests in his title, and see what they can prove.
So far as the press was concerned for many years, the state of Virginia executed a provably innocent man, Roger Keith Coleman. When the time came to prove it, it turned out to be a pack of lies. If you know the outcome of this press report is going to be different, please lend me your crystal ball.
Still, you might be right. As we all know, reporting by respected news organizations is sure to be truthful and not misleading, see http://en.wikipedia.org/wiki/Janet_Cooke
Posted by: Bill Otis | Aug 5, 2013 4:54:17 PM
Bill, you now sound like the D.A. is the Michael Morton Case who for years would say: "I don't have any Brady evidence; and if you think otherwise, prove that I do!'Well it took 20 years, but Morton proved it. And look what's happening to the prosecutor.
I would think that as an honorable prosecutor you would be upset about this and demand that the government fess up.
Posted by: Dave from Texas | Aug 5, 2013 5:23:20 PM
Dave from Texas --
"Bill, you now sound like the D.A. is the Michael Morton Case who for years would say: "I don't have any Brady evidence; and if you think otherwise, prove that I do!'Well it took 20 years, but Morton proved it. And look what's happening to the prosecutor."
No, I sound like the defense lawyers in the Duke lacrosse case who correctly warned against finding the accused guilty based on press reports. I'm skeptical of such reports, and gave three flagrant examples of their unreliability that you walk right past.
"I would think that as an honorable prosecutor you would be upset about this and demand that the government fess up."
I haven't been a prosecutor for almost 15 years. As to "fessing up," you're assuming your conclusion.
As I said, I'll wait for the Brady claims, if any get filed, to be litigated under higher standards than we have been taught to expect from the press.
Posted by: Bill Otis | Aug 5, 2013 5:47:00 PM
Hm. I tried to post a comment earlier, but it's not showing up. Apologies if two similar posts from me pop up in this thread.
In Whren, the Supreme Court all but validated outright lying by cops to justify a traffic stop. Then in Florida v. Harris, the Supreme Court abandoned reality to endorse the fantasy that cops have magic, infallible dogs that are always correct even when they are demonstrably wrong.
The point is that courts don't really care very much about honesty when it comes to stopping and searching people. The important thing is that cops mouth the correct words; there is no critical examination of their plausibility.
This whole kerfuffle over the DEA's lies will just get filed under the rubric of "pretext" and business will continue as usual.
Posted by: C.E. | Aug 5, 2013 11:10:48 PM
Mr. Bill: "Remind me, who is it who's always here telling us that we can't decide guilt based on press reports?"
I constantly do that. There is a little distinction however. The people only have the presumption of innocence while the government is presumed right and has immunity. Therefore, the government has more rights than the people do and does not really need the protection of the presumption of innocence.
Posted by: George | Aug 5, 2013 11:14:59 PM
Only the tip of the iceberg.
Feds Are Suspects in New Malware That Attacks Tor Anonymity
BY KEVIN POULSEN0 8.05.13
anonymous hosting company Freedom Hosting. That would normally be considered a blatantly criminal “drive-by” hack attack, but nobody’s calling in the FBI this time. The FBI is the prime suspect.
“It just sends identifying information to some IP in Reston, Virginia,” says reverse-engineer Vlad Tsyrklevich. “It’s pretty clear that it’s FBI or it’s some other law enforcement agency that’s U.S.-based.”
If Tsrklevich and other researchers are right, the code is likely the first sample captured in the wild of the FBI’s “computer and internet protocol address verifier,” or CIPAV, the law enforcement spyware first reported by WIRED in 2007.
Court documents and FBI files released under the FOIA have described the CIPAV as software the FBI can deliver through a browser exploit to gather information from the target’s machine and send it to an FBI server in Virginia. The FBI has been using the CIPAV since 2002 against hackers, online sexual predators, extortionists, and others, primarily to identify suspects who are disguising their location using proxy servers or anonymity services, like Tor.
The code has been used sparingly in the past, which kept it from leaking out and being analyzed or added to anti-virus databases.
The broad Freedom Hosting deployment of the malware coincides with the arrest of Eric Eoin Marques in Ireland on Thursday on an U.S. extradition request. The Irish Independent reports that Marques is wanted for distributing child pornography in a federal case filed in Maryland, and quotes an FBI special agent describing Marques as “the largest facilitator of child porn on the planet.”
Freedom Hosting has long been notorious for allowing child porn to live on its servers. In 2011, the hactivist collective Anonymous singled out Freedom Hosting for denial-of-service attacks after allegedly finding the firm hosted 95 percent of the child porn hidden services on the Tor network.
Freedom Hosting is a provider of turnkey “Tor hidden service” sites — special sites, with addresses ending in .onion — that hide their geographic location behind layers of routing, and can be reached only over the Tor anonymity network.
Tor hidden services are ideal for websites that need to evade surveillance or protect users’ privacy to an extraordinary degree – which can include human rights groups and journalists. But it also naturally appeals to serious criminal elements.
Shortly after Marques’ arrest last week, all of the hidden service sites hosted by Freedom Hosting began displaying a “Down for Maintenance” message. That included websites that had nothing to do with child pornography, such as the secure email provider TorMail.
By midday Sunday, the code was being circulated and dissected all over the net. Mozilla confirmed the code exploits a critical memory management vulnerability in Firefox that was publicly reported on June 25, and is fixed in the latest version of the browser.
Though many older revisions of Firefox are vulnerable to that bug, the malware only targets Firefox 17 ESR, the version of Firefox that forms the basis of the Tor Browser Bundle – the easiest, most user-friendly package for using the Tor anonymity network.
“The malware payload could be trying to exploit potential bugs in Firefox 17 ESR, on which our Tor Browser is based,” the non-profit Tor Project wrote in a blog post Sunday. “We’re investigating these bugs and will fix them if we can.”
The inevitable conclusion is that the malware is designed specifically to attack the Tor browser. The strongest clue that the culprit is the FBI, beyond the circumstantial timing of Marques’ arrest, is that the malware does nothing but identify the target. www.wired.com
Posted by: George | Aug 5, 2013 11:30:56 PM
Whether one can reasonably assign guilt based on press reports has less to do with the presumption of innocence, or any other kind of presumption, than with the well-known unreliability of the press.
Personally, I presume neither that the government is culpable nor that it isn't. That's because evidence, tested by the adversary process, is better than presumption. I will thus wait for the evidence if and when these allegations show up in litigation. In this, I am merely following the don't-try-this-case-in-the-press advice I hear so often on this forum.
Of course I could just ring up the Usual Big Bad Government Suspects right now, as the liberals would like to do -- and just as they wanted to do with George Zimmerman and the Duke lacrosse defendants. When the evidence came out, it was a different story.
It might be a different story here too. Or it might not. I don't know, and neither does anyone else on this board.
Posted by: Bill Otis | Aug 6, 2013 1:01:48 AM
I said: "I wonder if Bill will do the same."
Bill said: "I'll wait for the drug pushers to file their Brady motions, as Doug suggests in his title, and see what they can prove."
I guess the answer to my question is 'no.'
Posted by: Anon | Aug 6, 2013 10:38:00 AM
The answer to you question is the one I gave. When I want you to make one up for me, I'll let you know.
P.S. I see you give no response to the three episodes of gross misrepresentations by press reports. If you would care to, and discuss how that squares with your willingness to condemn based on the current press report, I'd be interested to hear what you have to say.
Posted by: Bill Otis | Aug 6, 2013 12:58:08 PM
Bill stated: "It might be a different story here too. Or it might not. I don't know, and neither does anyone else on this board."
There can be a tremendous amount of spin in news reports --- often based on agendas, both liberal and conservative. There can also be a lot of funny things that go on in police investigations. Not to put words into Bill's mouth, but if he is saying we really don't know much yet, one way or another, based on this news article . . . isn't that pretty much correct? However, the article certainly sparks interest.
Posted by: Tim Holloway | Aug 6, 2013 3:19:19 PM
Bill, I must have missed the press release from DEA, DOJ, or some other Executive Branch agency denying that the program, as described in the Reuters story and as confirmed by DEA agents quoted in the story, exists exactly as described in the story. When one is issued, do be kind enough to let us know. Until then, I'll assume that the DEA agents quoted in the story as telling the truth about the program's existance.
Posted by: Anon | Aug 6, 2013 5:32:11 PM
"Until then, I'll assume that the DEA agents quoted in the story as telling the truth about the program's existance."
Congratulations! For the first time in your life, you're crediting DEA agents. There is yet hope for you.
And in other news....you continue to pretend that press reports are reliable, although I've shown (and most people know) they aren't, and can include outright fabrications, as was the case in each of the three examples I cited (and you refuse to discuss).
Little is more persuasive or appealing than a reporter's quoting (or claiming to quote) anonymous sources, then having the peanut gallery claiming that the case is "proved" until it's denied.
Not that you'd believe a denial, now would you? So there's no great point.
Go prove your case in court. Anonymous sources in the press, "backed up" by anonymous commenters on the Internet, is just so much hot air.
Posted by: Bill Otis | Aug 6, 2013 6:28:19 PM
Oh, my, my. Here we have Mr. Bill wanting to uphold the presumption of innocence for the government when he doesn't even want to uphold not guilty jury verdicts. (Casey Anthony, and there are more examples if anyone cares enough to search.)
Posted by: George | Aug 6, 2013 6:55:27 PM
Otis, if I misread one of your prior posts I apologize, but I have yet to hear you deny that you knew about this when you were advising the DEA from 2003 to 2007.
Posted by: The Death Penalty Sucks. | Aug 6, 2013 8:10:50 PM
no offense bill but if even ONE piece of this
"As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement."
Is true. Every individual in the agency involved and any bosses all the way to the top need to be taken out and SHOT!
as for the FBI attacking computer networks!
Might be time for the private sector to create thier own version that will backtrack and destroy the computers of anyone who attacks them. Then dare the fuckups at the FBI to say a word!
Posted by: rodsmith | Aug 6, 2013 8:48:52 PM
"Oh, my, my. Here we have Mr. Bill wanting to uphold the presumption of innocence for the government..."
Learn to read. What I said was that "I presume neither that the government is culpable nor that it isn't." You're the one who's into presumptions. I'm into court-tested evidence.
"...when he doesn't even want to uphold not guilty jury verdicts. (Casey Anthony, and there are more examples if anyone cares enough to search.)"
I don't even know what it means to "uphold" a not guilty verdict. What are you talking about? Did I ever say that Casey Anthony should be thrown in jail notwithstanding her erroneous acquittal? Where was that?
Posted by: Bill Otis | Aug 7, 2013 1:10:43 PM
"Otis, if I misread one of your prior posts I apologize, but I have yet to hear you deny that you knew about this when you were advising the DEA from 2003 to 2007."
1. Get some manners. My name is "Bill" or "Bill Otis" or "Prof. Otis." I am not your servant.
2. I'm sorry, Sen. McCarthy, but I'm really not going to tolerate your sleazeball question by answering whether I am now, or ever have been, a member of the Communist Party.
3. If called before Congress, however, I'll be happy to answer every question asked of me -- as I always have in my Congressional testimony -- and, unlike Obama administration official Lois Lerner, will not invoke the Fifth Amendment. When you become Congress, let me know.
Posted by: Bill Otis | Aug 7, 2013 1:22:57 PM
"1. Get some manners. My name is "Bill" or "Bill Otis" or "Prof. Otis." I am not your servant.
2. I'm sorry, Sen. McCarthy, but I'm really not going to tolerate your sleazeball question by answering whether I am now, or ever have been, a member of the Communist Party.
3. If called before Congress, however, I'll be happy to answer every question asked of me -- as I always have in my Congressional testimony -- and, unlike Obama administration official Lois Lerner, will not invoke the Fifth Amendment. When you become Congress, let me know."
Take a Midol, Bill, I'm just having some fun with you. Chances like this don't come around that often, you know. Besides, I'm sure you've got more than adequate legal cover.
Posted by: The Death Penalty Sucks. | Aug 7, 2013 7:04:34 PM
Mr. Otis: just another one of those pesky press reports hot off todays' press:
Exclusive: IRS Manual Detailed DEA's Use of Hidden Intel Evidence
Published: August 8, 2013 at 9:57 AM ET
WASHINGTON — Details of a U.S. Drug Enforcement Administration program that feeds tips to federal agents and then instructs them to alter the investigative trail were published in a manual used by agents of the Internal Revenue Service for two years.
The practice of recreating the investigative trail, highly criticized by former prosecutors and defense lawyers after Reuters reported it this week, is now under review by the Justice Department. Two high-profile Republicans have also raised questions about the procedure.
A 350-word entry in the Internal Revenue Manual instructed agents of the U.S. tax agency to omit any reference to tips supplied by the DEA's Special Operations Division, especially from affidavits, court proceedings or investigative files. The entry was published and posted online in 2005 and 2006, and was removed in early 2007. The IRS is among two dozen arms of the government working with the Special Operations Division, including the Federal Bureau of Investigation, the National Security Agency and the Central Intelligence Agency.
An IRS spokesman had no comment on the entry or on why it was removed from the manual. Reuters recovered the previous editions from the archives of the Westlaw legal database, which is owned by Thomson Reuters Corp, the parent of this news agency.
As Reuters reported Monday, the Special Operations Division of the DEA funnels information from overseas NSA intercepts, domestic wiretaps, informants and a large DEA database of telephone records to authorities nationwide to help them launch criminal investigations of Americans. The DEA phone database is distinct from a NSA database disclosed by former NSA contractor Edward Snowden.
Monday's Reuters report cited internal government documents that show that law enforcement agents have been trained to conceal how such investigations truly begin - to "recreate" the investigative trail to effectively cover up the original source of the information.
DEA officials said the practice is legal and has been in near-daily use since the 1990s. They have said that its purpose is to protect sources and methods, not to withhold evidence.
Defense attorneys and some former judges and prosecutors say that systematically hiding potential evidence from defendants violates the U.S. Constitution. According to documents and interviews, agents use a procedure they call "parallel construction" to recreate the investigative trail, stating in affidavits or in court, for example, that an investigation began with a traffic infraction rather than an SOD tip.
The IRS document offers further detail on the parallel construction program.
"Special Operations Division has the ability to collect, collate, analyze, evaluate, and disseminate information and intelligence derived from worldwide multi-agency sources, including classified projects," the IRS document says. "SOD converts extremely sensitive information into usable leads and tips which are then passed to the field offices for real-time enforcement activity against major international drug trafficking organizations."
The 2005 IRS document focuses on SOD tips that are classified and notes that the Justice Department "closely guards the information provided by SOD with strict oversight." While the IRS document says that SOD information may only be used for drug investigations, DEA officials said the SOD role has recently expanded to organized crime and money laundering.
According to the document, IRS agents are directed to use the tips to find new, "independent" evidence: "Usable information regarding these leads must be developed from such independent sources as investigative files, subscriber and toll requests, physical surveillance, wire intercepts, and confidential source information. Information obtained from SOD in response to a search or query request cannot be used directly in any investigation (i.e. cannot be used in affidavits, court proceedings or maintained in investigative files)."
The IRS document makes no reference to SOD's sources of information, which include a large DEA telephone and Internet database.
CONCERN IN CONGRESS
House Intelligence Committee Chairman Mike Rogers, R-Michigan, expressed concern with the concept of parallel construction as a method to hide the origin of an investigation. His comments came on the Mike Huckabee Show radio program.
"If they're recreating a trail, that's wrong and we're going to have to do something about it," said Rogers, a former FBI agent. "We're working with the DEA and intelligence organizations to try to find out exactly what that story is."
Spokespeople for the DEA and the Department of Justice declined to comment.
Sen. Rand Paul, R-Kentucky, a member of the Homeland Security and Government Affairs Committee, said he was troubled that DEA agents have been "trying to cover up a program that investigates Americans."
"National security is one of government's most important functions. So is protecting individual liberty," Paul said. "If the Constitution still has any sway, a government that is constantly overreaching on security while completely neglecting liberty is in grave violation of our founding doctrine."
Posted by: onlooker12 | Aug 8, 2013 11:58:08 AM
LOL got to love the two-faced lieing shits!
""If they're recreating a trail, that's wrong and we're going to have to do something about it," said Rogers, a former FBI agent. "We're working with the DEA and intelligence organizations to try to find out exactly what that story is."
the telling part is this
"Rogers, a former FBI agent:"
so you didn't know it at the time?
this just shows how fucking stupid and retarded the criminals who now run this gov think we all are!
Sad thing is we PROVE it every election!
Posted by: rodsmith | Aug 8, 2013 1:53:45 PM