Wiretap Law Complicates Philippine Drug War
'You just have to outwit them'
Wiretapping is a central tactic for law enforcement officers pursuing drug dealers and traffickers. In 2016 alone, various U.S. law enforcement agencies were authorized to use wiretaps 3,168 times.
82 percent of these wiretaps were authorized for investigations involving narcotics—a trend that has largely held since 2006. In total, these wiretaps led to 12,412 arrests and 1,248 convictions in 2016.
But wiretaps are not only useful in nabbing a large number of drug dealers. The tactic has been essential in taking down some of the largest drug gangs and bosses.
For example, the dismantling of the Gangster Disciples in Chicago in the 1990s—America’s most profitable drug syndicate at the time—relied heavily on wire taps. The practice also allowed authorities to capture El Chapo Guzmon, the notorious head of Mexico’s Sinaloa cartel, in 2013.
The Philippines is currently undertaking a nationwide war on drugs, and yet, no law enforcement agency is legally permitted to carry out wiretaps against drug dealers. Wiretaps are permitted under Republic Act No. 4200, more commonly known at the “Anti-Wiretapping Law.” But only of those suspected of kidnapping, sedition, espionage and a few other reasons.
Unsurprisingly, the start of the drug war in the summer of 2016, reignited calls by law enforcement for lawmakers to pass legislation allowing wiretaps in narcotics investigations. The agency making the hardest push for this legislation is the Philippines Drug Enforcement Agency, or PDEA.
Current law in The Philippines only allows wiretapping in cases involving espionage, rebellion, sedition or kidnapping. But only after securing a court order.
There is a proposed bill in congress that allows wiretapping of drug dealers. But this bill is unlikely to go up for a vote until about a year from now. In the meantime, PDEA has been tasked with taking the lead in the drug war.
This is a daunting task for the 1,800 members of PDEA, only around half of whom are field agents. The drug trade in The Philippines is a multi-billion-dollar industry, comprised of savvy drug lords and mid-level dealers that are adept at avoiding arrest.
In a rather frank admission, the spokesman for PDEA, Derrick Carrera, said that his agency has been using wiretaps to take down drug syndicates.
“Well, if you want to put one on them,” he said, referring to wire taps of drug dealers, “you’re going to have to do it even if it’s not allowed by law.”
“But you can’t even use it in court,” he clarified.
“You just have to outwit them. So, what do you do? You can employ a hacker. You can employ anyone… anyone who knows how to do it. But it’s all going to be inadmissible in court. You just do it in order to intercept the movement, and get the guys who transport them.”
Philippine president Rodrigo Duterte made a similar admission in September of last year, saying he ordered wiretaps on mayors involved in the drug trade. Duterte’s spokesman clarified that Duterte likely did the wiretaps legally, though he didn’t explain how.
Thus, I clarified with Carrera, asking whether PDEA was somehow doing the wire taps legally.
“It’s not even legal for God’s sake!,” he exclaimed. “It’s just an intelligence technique. You’re just going to have your hack … you’re just going to have to hack your way through it.” In a follow-up interview Carerra said he wasn’t sure if the practice was legal or not. He noted that PDEA doesn’t listen in on calls, but merely triangulates the location of a suspect using his or her phone.
Apparently, PDEA agents are able to carry out these wiretaps with the help of tech-savvy agents. “If you were an agent, you learn the ropes, you learn the art. We have some agents that are very good at it.”
Carerra also said PDEA “usually do[es] this work with intelligence agencies.” He didn’t elaborate which agencies.
Carerra said he had direct experience with the practice when he was operating in the field. “During my time as a director of an operating unit, we’ve availed of this. We’ve requested this from certain agencies at one time or another. Just to establish a probable location of a suspect.”
“But still, you can’t use it in court,” he explained.
“Sure, you’re going to have to say ‘this operation was done through intelligence.’ It’s all about intelligence. And you know how intelligence is, it’s all cloak and dagger. You can’t declare it in court. You’re going to have to avoid discussing the nitty-gritty of it on how you arrived at intercepting … ‘How were you able to detect the movement of that product from here to here if the guy calling the shots is either behind bars or from somewhere else just using electronic means?’”
Why would PDEA flagrantly violate the anti-wiretapping law?
It would be difficult for any country’s law enforcement agents to carry out such a task without the aid of wiretaps. However, the drug market in The Philippines is set up in a way that makes it extremely difficult for PDEA and other law enforcement to penetrate using human intelligence or buy-bust operations alone.
The following description of the drug market is based on interviews with Carrera, journalists, human rights activists, an academic, residents in drug trafficking areas, community leaders and several Filipinos currently participating in the drug trade. There was surprisingly little disagreement between the sources on how the drug market is set up.
At top — a protest against the Philippine war on drugs at the Philippine consulate in New York City in October 2016. Above — U.S. Air Force Master Sgt. Jeremy Burkeen facilitates non-lethal crowd control training with members of the Philippine national police and armed forces of The Philippines during in Tagbiliran City, The Philippines, on Aug. 16, 2015. U.S. Air Force photo by Tech. Sgt. Aaron Oelrich
Hierarchy of the drug market
At the top of the drug market are foreign drug trafficking organizations. African drug trafficking organizations, and the Mexican drug cartels have been known to smuggle drugs into The Philippines. But most of the drugs coming into The Philippines originate from the Chinese drug syndicate known as the Triads, according to a report from Reuters.
In 2016, nine meth labs run by the Triads were shut down by Philippine law enforcement. Their primary means of producing meth largely gone, the Triads moved some of their labs to ships off the coast. Most of the meth coming from the Triads is now smuggled into The Philippines from abroad, according to Carrera.
From there, the Triads use trusted middle-men to transport whole-sale drugs to what I call “distributors.” These “distributors,” are usually organized crime families that also have some type of legitimate business, according to criminology professor Raymund E. Narag, an expert on crime in The Philippines.
The distributors use electronic means to communicate with a few trusted middle-men, who seek out mid-level drug dealers to buy wholesale drugs—usually a kilogram of meth at a time, according to Carrera. Using a middle-man allows the distributors to be known by only a small number of people. This reduces the likelihood of informants being able to identify him or her.
Most of these transactions are done by phone, and the distributor usually uses subordinates to make the transaction with middle-men, according to a middle-man for a drug distributor, and Carrera.
The courier gets it from the warehouse. “Then another courier meets up in the middle … could be two or three guys before it finally reaches the intended destination,” Carrera said. “So, how do you trace all this, when the exchange is at least two to three hands?”
Carrera said that he suspects that PDEA’s inability to legally wiretap makes these dealers feel comfortable making these transactions over the phone.
The drug market in The Philippines is also set up in a way that helps to avoid violence between dealers.
While violence does occur, its relatively rare, and does not resemble the high-intensity cartel wars in Mexico, or even gang wars in Chicago, according to several users, Carerra and several Catholic priests that live in the most drug-affected communities in The Philippines.
This lack of violence reduces the number of arrests law enforcement are able to make, and thereby their ability to recruit informants.
One of the main contributors to this stability is the fact that most dealers—at all levels of the distribution line—only accept payments in full for whole-sale drugs, according to a middle-man who works for a distributor, and several street-level users and dealers. This helps avoid costly violence when people fail to pay debts.
Even mid-level dealers sell supply to subordinate “hand-to-hand” dealers in full. This means that profits for everyone down the distribution line come from marginal increases added while selling the product.
“When somebody is buying drugs, they want the full amount,” answered one user when asked why the drug trade is relatively peaceful in his area.
Carrera did note that some Muslim distributors allow debts. But they take a family member or trusted subordinate of the debtor as collateral. This helps to avoid having to hunt down debtors in the open.
Another major violence-reducing factor is that drug dealers seem to be able to cooperate when it comes to territorial control.
It’s somewhat unclear how they are able to ensure this cooperation. Many of those I interviewed pointed out that many of the dealers—especially at the mid-level—are either related to each other or share a common social network.
Scholarly work has shown that rebel groups with close social networks are less likely to fracture and fight amongst one another than those with distant networks. Since drug syndicates face similar types challenges to cooperation, it should hardly be surprising that the close social networks among drug syndicates in The Philippines facilitates cooperation and a relatively peaceful drug market.
These close social networks among rebels also staves off the ability of state forces to recruit the informants necessary to kill or capture rebels.
Much to the frustration of law enforcement in The Philippines, the close social networks of drug syndicates there also make it difficult to penetrate these organizations, according to Carrera.
But one of the biggest factors making purely human intelligence operations difficult is the protection given to drug dealers at all levels by politicians and law enforcement officers in The Philippines.
In 2017 alone, PDEA and the PNP have arrested 145 government employees, 129 elected officials and 27 uniformed personnel—which includes police and military personnel.
Carrera noted that distributors and even mid-level dealers, are “quite difficult to penetrate because you got local elected or appointed government workers involved in the trade.”
The middle-man for a distributor admitted that he had a police officer that protected him from prosecution.
A Muslim drug syndicate based in Fairview, in Quezon City, also enjoys political protection, according to an anonymous source who has had direct dealings with the syndicate.
The final factor making purely human intelligence difficult for law enforcement is the reality that some distributors and even mid-level dealers are willing and able to mount armed resistance when law enforcement attempt to carry out search or arrest warrants.
The drug syndicate in Fairview has avoided arrest, in part, because of their heavy firepower and willingness to use it against law enforcement, according to the source with direct dealings with the syndicate.
Carrera even admitted to the syndicates’ ability to project deterrence.
“If you even want to launch an op in such an area, you better be sure that you bring overwhelming force,” Carrera said, referring to Fairview. “Overwhelming firepower. You can even bring an armored vehicle to cover your troops, then do so. So definitely, if you walk into an area like that, you’re going to expect a lot of resistance.”
Carrera has had direct experience with such resistance.
“The first gunfight I ever had was my second day on job as a regional director was when we implemented a search warrant in the Muslim stronghold … Less than two minutes upon arriving in the area … we were met with automatic fire from an Uzi. And the guy even had a grenade. He even used kids as human shields. We were fortunate to get out of there alive.”
“If you peruse through our case record on to the southern part of The Philippines in Mindanao, hardly any cases are put through all the way into conviction. … A lot of threats being done or posed against prosecutors, law enforcers, prosecutors, and even judges [by members of drug syndicates], such that it makes it difficult prosper all the way until conviction.”
“It happens everywhere, but its more pronounced in Mindanao.”
It’s unclear why The Philippines has banned wiretapping of drug dealers, but not other similarly threatening groups.
The large number of politicians and police arrested for connections to the drug trade likely offers a clue.
“It is because so many politicians and police officials are tied to the drug trade,” said Carlos Conde of Human Rights Watch. “Police wire-tapping suspected drug traffickers puts them in a very compromised position. There’s just no way they’d allow it.”