June 8, 2020
The Honorable William P. Barr
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Barr:
We are gravely concerned by reports that the Drug Enforcement Administration (DEA)
has been granted authority to conduct warrantless surveillance of Americans protesting in
support of racial justice and an end to police brutality.1 We write to ask that the Department of
Justice immediately rescind this authority and ensure that DEA activities do not exceed the scope
of authority granted to the agency by Congress.
Thousands of Americans have engaged in protests following the May 25, 2020 police
killing of George Floyd. According to a Justice Department memo, on May 31, the Department
approved a request from acting DEA Administrator Timothy J. Shea for authority to perform the
following activities in response to these protests:
“(1) conduct covert surveillance and protect against threats to public safety; (2) share
intelligence with federal, state, local, and tribal counterparts; (3) if necessary, intervene as
Federal law enforcement officers to protect both participants and spectators in the
protests; and (4) if necessary, engage in investigative and enforcement activity including,
but not limited to, conducting interviews, conducting searches and making arrests for
violations of Federal law.”2
DEA’s stated intention to “conduct covert surveillance” is extremely distressing. First,
the memo fails to describe or place any guardrails around such surveillance, thus opening the
door to sweeping, warrantless surveillance activities inconsistent with the preservation of civil
liberties. The use of the term “covert” suggests that DEA’s actions will not be apparent to the
public and could encroach upon activities wherein Americans have a reasonable expectation of
privacy. It is also critical to note that Americans engaged in protests are protected by the First
Amendment, and that exercising the constitutionally protected right to free speech is not
evidence of a crime or intent to commit a crime. This surveillance will unquestionably have a
chilling effect on Americans’ exercise of their First Amendment rights and could constitute an
unconstitutional violation of their civil liberties.

Leopold, Jason and Cormier, Anthony. “The DEA Has Been Given Permission To Investigate People Protesting
George Floyd’s Death.” BuzzFeed News. June 2, 2020.
2
Memorandum for the Deputy Attorney General from Timothy J. Shea, Acting Administrator, Drug Enforcement
Administration (Obtained by BuzzFeed News).
1

 DEA’s history with respect to surveillance renders this new authority all the more
troubling. In 2013, Reuters reported that DEA was “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.”3 This report also revealed
that DEA agents were “directed to conceal how such investigations truly begin - not only from
defense lawyers but also sometimes from prosecutors and judges…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.”4 A 2018
report by Human Rights Watch also described several troubling surveillance tactics employed by
DEA. One example detailed the case of United States v. Grobstein wherein “defense attorneys
alleged that a DEA agent secretly (and unlawfully) searched luggage left on a long-distance bus
during a layover, then—after the passengers had re-boarded—approached the defendant seeking
consent to search his bag.”5
These examples indicate that DEA has engaged in surveillance practices in the past that
were, at best, questionable and, at worst, illegal.
Finally, we are concerned by the Department’s expansive interpretation of the law
governing DEA authorities. The memo acknowledges that the scope of DEA’s mission is
statutorily “limited to enforcing Federal crimes related to drugs,” but states that “the Attorney
General is authorized to designate DEA to perform other law enforcement duties as he may deem
appropriate.”6 The Comprehensive Drug Abuse Prevention and Control Act of 1970 does
authorize DEA agents to “perform such other law enforcement duties as the Attorney General
may designate.”7 However, this provision was long understood to refer exclusively to law
enforcement activities related to drug laws; in 1988, the Department of Justice Office of Legal
Counsel determined that the provision “pertains to general law enforcement work which, while
not limited to the investigation of the drug laws, nevertheless arises from or is supplementary to
it.”8 The Office of Legal Counsel reversed that determination in 2003, alleging that there is “no
warrant for restricting the provision to the investigation of offenses connected with narcotics
cases” and that the legislative history of the law supports its expansive view.9 We are disturbed
by the Department’s decision to grant such broad and extensive authority to DEA based on a
provision about which there is not absolute clarity.
To protest is to partake in a great American tradition dating back beyond our country’s
founding, to the struggle that led to its creation. We strongly oppose any action that infringes

Shiffman, John and Cooke, Kristina. “Exclusive: U.S. directs agents to cover up program used to investigate
Americans.” Reuters. August 5, 2013.
4
Ibid.
5
“Dark Side: Secret Origins of Evidence in US Criminal Cases.” Human Rights Watch. January 9, 2018.
6
Memorandum for the Deputy Attorney General from Timothy J. Shea, Acting Administrator, Drug Enforcement
Administration (Obtained by BuzzFeed News).
7
21 U.S. Code § 878.Powers of enforcement personnel.
8
“Scope of the Attorney General’s Authority to Assign Duties Under 21 U.S.C. § 878(a)(5).” Memorandum
Opinion for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel.
March 24, 2003.
9
Ibid.
3

2

 upon Americans’ constitutional right to engage in protests and urge the Department to rescind
immediately the sweeping authorities it has granted to DEA.
Sincerely,

ANDY LEVIN
Member of Congress

ILHAN OMAR
Member of Congress

JAMIE RASKIN
Member of Congress

3