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Liberty & National Security
By Liza Goitein – 02/03/12
Crossposted at Balkinization.
Two weeks ago, I made my first trip to Guantanamo Bay, Cuba. I went as a representative of one of several non-governmental organizations invited to observe the military commissions that the government has established to try terrorist suspects it does not wish to try in federal court.
A few days before the trip, the Office of Military Commissions e-mailed me a twelve-page Power Point presentation of information for travelers. It appeared to have been written primarily for military personnel and was sprinkled with indecipherable jargon and acronyms, but as I anxiously skimmed the bullet points for my marching orders, my eyes fell upon this clear directive:
“It is illegal to harm, kill or eat an iguana.”
At last! The rule of law has come to Guantanamo!
There were no caveats, no exemptions, no loopholes, no equivocations. To my knowledge, the Office of Legal Counsel has issued no opinion concluding that the statute prohibiting the harming of iguanas does not constrain the President when acting as Commander-in-Chief — as it did when construing the equally clear language of the statute prohibiting torture. Nor has that office, to my knowledge, shown the same creativity in defining “harm” that it showed in defining “torture,” when it opined that a person hasn’t been tortured unless he experiences the kind of pain associated with “organ failure or death.” The government has not argued that Congress surely did not intend the law to extend to Guantanamo Bay — as it did when detainees sought to avail themselves of the statutory right to habeas corpus.
As others have observed, the impressive 20-pound lizards who roam the island are experiencing a very different Guantanamo than the nearly 800 detainees who have been imprisoned there since 9/11. For those detainees, the story of Guantanamo can be boiled down to a series of efforts on the part of the government to avoid the clear application of the law. As the Supreme Court has repeatedly rejected these efforts — holding that the President cannot create ad hoc military commissions without congressional authorization, that due process requires giving U.S. citizens a meaningful opportunity to contest their status as “enemy combatants,” that detainees have a constitutional right to challenge the basis for their detention — the government’s efforts to avoid the law have become more limited, less brazen. But they have not stopped.
The government’s propensity to get creative with the law was on full display in the pre-trial hearing in the case of Abd al-Rahim al-Nashiri. Al-Nashiri, a Saudi citizen, is charged with planning the 2000 bombing of the U.S.S. Cole, which killed 17 sailors. Arrested in 2002, al-Nashiri spent the next four years in secret CIA prisons, where (according to a CIA Inspector General report) he was waterboarded, threatened with a loaded gun, and interrogated with a revving power drill next to his head. Al-Nashiri, who faces the death penalty, will likely be the first “high-value detainee” to go to trial — although that may not be until 2015.
The main issue before the Commission at the hearing was attorney-client privilege. A defendant in regular criminal proceedings has a constitutional right to confidentiality in his communications with his attorney. The rights to effective assistance of counsel and due process, as well as the right not to incriminate oneself, would be meaningless if the government could eavesdrop on these attorney-client exchanges.
The government says that the Constitution ends at the tip of Florida; it relies instead on the Military Commission Rules of Evidence. But even those rules recognize attorney-client privilege. “[A] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or the client’s representative and the lawyer or the lawyer’s representative.” Clear enough. Communications between the detainees and their attorneys are like iguanas: protected.
Except when the government says they’re not. In December, Rear Admiral David Woods, the commander in charge of the detention facilities at Guantanamo, issued a policy allowing a team of contractors hired by the Defense Department — a so-called “privilege team,” consisting of intelligence professionals and translators — to inspect the incoming legal mail of detainees involved in military commissions proceedings. At the hearing, al-Nashiri’s lawyers asked the judge to bar implementation of the policy in his case.
The government’s attorneys assured the military judge that there was nothing to worry about, because the contractors were not actually “reading” the mail; they were just looking to see whether any “informational contraband” — defined as anything that the GTMO commander deemed “impermissible or inappropriate” — was in “plain view.” In two days of argument, however, they were able to cite only two types of information that that privilege team might uncover without actually reading a document: classified markings (which are not necessarily “contraband,” as al-Nashiri is entitled to receive some classified information about his case) and diagrams of the detention facilities (an example that prompted visible skepticism on the part of the judge, presumably because of the implausible implication that defense counsel might be conspiring with al-Nashiri to stage a jailbreak). The other examples of “informational contraband” listed in the policy — things like “current political or military events in any country” — could never be detected without the act of reading because they would be embedded in the text of the document. (If you’re asking yourself why al-Nashiri — who has been in captivity for a decade — can’t receive political news about “any country,” you’re not alone.)
Rather than speculate about whether the privilege team might be reading the mail, one of al-Nashiri’s lawyers, Lieutenant Commander Stephen Reyes, asked to have a member of the privilege team testify about what the team actually was doing. Commander Andrea Lockhart, one of the prosecutors, countered that the current practice of the privilege team was irrelevant: the judge in al-Nashiri’s case could place any restrictions on the team that he wished and would have complete control over its actions.
The next day, Lockhart confessed error. She admitted that the team was bound only by the terms of its contract, and neither the prosecutors nor Admiral Woods — who issued the privilege team policy in the first place — knew what that contract said. But Lockhart nonetheless assured the judge that he could enter an order specifying what he would like the contractors to do, and if they didn’t do it, surely whoever was supervising their contract would take some sort of employment action. Perhaps not surprisingly, the notion of an optional judicial order did not give her pause.
The government also repeatedly claimed that Admiral Woods’ policy, which applies to detainees in military commissions proceedings, is no different than the procedure that has been in place for years for another group of detainees — those who have filed habeas petitions in federal court. But when the judge requested a copy of the court order governing the privilege team in habeas cases, he discovered that the order permits the team to inspect incoming legal mail only for physical contraband: weapons, files, or the like. Instead of apologizing profusely for having misled the judge, Commander Lockhart maintained that, in fact, the order permitting inspection only for physical contraband had the exact same meaning as Woods’ policy, which permits inspection for both physical and informational contraband. There was no sign of cognitive dissonance in her presentation. This rule, like so many others, simply didn’t mean what it said.
Judge Pohl was no pushover. When Admiral Woods was late to give his testimony, Pohl scolded the prosecutors and admonished them to have their witnesses ready on time: “I really don’t care what their rank is.” He clearly will not entertain any suggestion that the officers who run the prison also run his courtroom. But by the same token, he appeared reluctant to insert himself in matters relating to the security of the detention facility — the purported reason for the privilege team review. Although he reserved judgment, he signaled that he is at least considering allowing some kind of “plain view” review. Which would simply confirm once again that at Guantanamo, no matter how clearly a rule may be stated, you can never be truly sure what it means or whether it will be followed.
Unless, of course, you’re an iguana.
Tags: Liberty & National Security, Detainee Policy
By Liza Goitein & Emin Akopyan – 01/12/12
Lawsuits attempting to hold the government and telecom companies accountable for illegal warrantless wiretapping under President George W. Bush have encountered three main obstacles: the state secrets privilege, the constitutional requirement of standing, and Congress’s retroactive grant of immunity to telecom companies that cooperated with the government. Recently, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit solidified one of these obstacles, but dealt a mortal blow to another.
In Hepting. v. AT&T Corp., the Ninth Circuit held that Congress’s retroactive grant of immunity to telecom companies — set forth in section 802 of the FISA Amendments Act of 2008 (“FAA”) — passed constitutional muster. The district court had described the provision as “sui generis” among immunity laws. Congress in the FAA did not retroactively change the substantive law to legalize the telecoms’ alleged assistance to the intelligence community. Instead, Congress required courts to dismiss any case against a telecom company if the Attorney General filed a certification asserting one of the following: that the telecom companies had statutory authority for their alleged actions; that they didn’t actually perform the alleged actions; or that they acted pursuant to a directive from the president or other high-ranking official. In other words, even if the companies broke the law, the Attorney General could essentially tell the court to dismiss the case.
In upholding the section 802’s validity, the Ninth Circuit panel rejected several arguments against its constitutionality. Unfortunately, though, the panel did not address the crux of the issue. In an amicus brief filed in related litigation, In re NSA Telecommunications Records Litigation, the Brennan Center explained that section 802 violates the Constitution’s prohibition on congressionally enacted “rules of decision.” Under United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) and its progeny, Congress cannot intervene in existing litigation and compel a particular result without changing the underlying substantive law. Such intervention violates the Separation of Powers by arrogating to Congress the inherently judicial function of deciding cases. Here, Congress did not change the underlying law but instead created a mechanism which could have only one result in a particular set of pending lawsuits — dismissal of the case.
The plaintiffs in Hepting made a version of this argument, but the panel avoided grappling with it by merely distinguishing the facts of the case cited by the plaintiffs, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Although the facts in Plaut were indeed distinguishable, few cases present perfectly analogous fact patterns. The principles enunciated in Plaut were nonetheless applicable in this case and should have held sway.
The same three-judge panel took greater care in resolving the question of standing in Jewel v. National Security Agency. In order to have constitutional standing, a plaintiff must allege, among other things, that she suffered an “injury in fact” — i.e., a concrete and particularized grievance. This issue has bedeviled the wiretapping lawsuits from the outset. Because of the intense secrecy of the wiretapping program, plaintiffs generally don’t know if their phone calls or emails were wiretapped. This shouldn’t matter if the plaintiffs can show that they were injured by the program nonetheless — for example, if they had a reasonable fear that their communications might be intercepted and they incurred some cost or burden in taking evasive measures. But some of the decisions in the wiretapping cases have contemplated a higher burden, essentially requiring plaintiffs to do the impossible and prove what the government has taken great pains to hide.
The case decided by the Ninth Circuit panel recently was unusual in that the plaintiff did not allege that her communications might have been intercepted, but instead alleged the existence of a dragnet that actually did capture her communications. The panel therefore had little trouble determining that the plaintiff stated sufficiently concrete injuries. A more fulsome analysis was required to determine whether her injury was sufficiently “particularized,” but the panel ultimately concluded that even widespread injuries — including those shared by many or even most Americans — may confer standing if they are sufficiently concrete. Most notably, the panel rejected the district court’s assertion that plaintiffs must make a particularly persuasive showing of standing in national security cases.
The Ninth Circuit thus joins the Second Circuit (Amnesty International USA v. Clapper, 638 F.3d 118 (2d Cir. 2011)) in upholding the standing of plaintiffs in warrantless wiretapping cases. As noted by the panel in Jewel, the Second Circuit’s decision goes even further because it upholds standing in a case where the plaintiffs did not allege that they were actually wiretapped. These decisions stand in stark contrast to the Sixth Circuit’s decision denying standing to the plaintiffs in ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
The approach of the Ninth and Second Circuits should prevail. These courts’ decisions do much more than clarify arcane rules of jurisdiction. They are key victories for the rule of law. As the Brennan Center argued as amicus curiae in Amnesty, history shows that the executive branch’s authority to engage in surveillance is prone to abuse. For example, as the Church Committee revealed, between 1930 and 1970 the government regularly intercepted the communications of civil rights activists (including Martin Luther King, Jr. and the NAACP) and others who were suspected of no crime, but who took positions that the government disagreed with. Judicial oversight has been, and will continue to be, a key factor in preventing these kinds of abusive activities. A standard that requires plaintiffs to prove that they are victims of secret surveillance in order to challenge its legality not only exceeds the requirements of the Constitution but would effectively preclude judicial review of one of the government’s most intrusive and most frequently abused authorities. Such a result would be inconsistent with the Separation of Powers and the rule of law.
The Jewel decision thus represents a nod to accountability that should take some of the sting out of the decision in Hepting. But unfortunately for the Jewel plaintiffs, additional obstacles remain. The panel forecast the difficulties that Ms. Jewel would face in proving her allegations of wiretapping — which the panel assumed to be true for purposes of resolving the government’s motion to dismiss — at the merits stage. And it expressly directed the district court to consider the government’s assertion of the state secrets privilege on remand. After these recent decisions, accountability is still an option in the Ninth Circuit, but it is by no means a certainty.
Tags: Liberty & National Security, Privacy & Profiling, Transparency & Accountability
By Faiza Patel & Andrew Sullivan – 12/01/11
Crossposted at Huffington Post.
The announcement of the NYPD's recent arrest of Jose Pimentel, accused of building pipe bombs to embark on a bombing campaign around New York City, seemed high on drama, coming on a Sunday evening at short notice at City Hall. Noticeably absent from the press conference was the FBI, even though terrorism cases are usually handled at the federal level. And it wasn't because it was a bad time for them. The FBI had also been investigating Pimentel, but declined the NYPD's offer to pursue the case against him because of concerns that the informant was too involved in the plot. The informant smoked marijuana with Pimentel, and some of the incriminating statements on which the indictment is based were made while Pimentel was high. Unnamed federal law enforcement officials quoted in reports about the case expressed doubts about Pimentel's mental state and ability to carry out the planned attacks.
This is the second recent case where New York brought a terrorism case when the FBI chose not to pursue federal charges. In May, Ahmed Ferhani and Mohamed Mamdouh were arrested for allegedly plotting to bomb synagogues and churches. In that case, too, the FBI declined to participate because it had doubts about the credibility of the NYPD undercover agent, who seems to have led the mentally disturbed Ferhani into the plot and obtained incriminating statements from Mamdouh while he was drunk. The grand jury — which normally rubberstamps requests by prosecutors — was also skeptical of the NYPD's case against Ferhani and Mamdouh. It declined to indict them on the most serious charges (that they planned to blow up a synagogue with worshippers inside), although they were indicted on lesser charges.
The official line that the absence of the FBI from the Pimentel case is nothing out of the ordinary barely passes the snicker test. An ever increasing number of "anonymous" FBI agents have criticized the NYPD's tactics to reporters. One even went so far as to say that NYPD personnel on the Joint Terrorism Task Force agreed with the FBI's assessment of the Pimentel case, but the NYPD Intelligence Division went ahead and took it to the district attorney. Another federal agent was quoted as describing the Intelligence Division as "an empire unto itself."
Unfortunately this is not the only circumstance in which the Intelligence Division appears to be operating entirely without oversight. Since August, the Associated Press has revealed that the NYPD is conducting dragnet surveillance of the city's Muslim communities. The reports document a mapping program in which the NYPD collected data about Middle Eastern ethnic groups, and businesses owned or operated by members of those ethnic groups, including restaurants, cafes, barber shops, and bookstores. The AP's investigation also revealed that the police infiltrated mosques and Muslim student groups at New York City colleges. All of these activities were apparently routinely undertaken by the Intelligence Division, without any suspicion of criminal activity, in order to build up its information on Muslims in New York City.
The FBI, for its part, has suggested that the NYPD is using tactics that verge on the unconstitutional. The implication is, of course, that the FBI would never engage in such activities. The sad truth, however, is that the FBI has undertaken similar surveillance of Muslims, although it may not have penetrated quite as deeply into communities as the ethnically and religiously diverse New York City police force has been able to.
But one very important difference between the FBI's intelligence gathering and that of the NYPD is that the FBI's operations are at least subject to oversight by congressional committees and the Justice Department's Inspector General. The NYPD's Intelligence Division, on the other hand, has no meaningful oversight. Mayor Bloomberg's recent comment that "I have my own army in the NYPD" further drives home that point. The New York City Council has never held a hearing on the NYPD's intelligence operations, although some Council Members did pointedly question Police Commissioner Ray Kelly about these activities at a recent hearing on public safety. The NYPD has monitors for police misconduct and corruption, but no one is watching the Intelligence Division.
While we are all grateful to the NYPD for its work in protecting the city, that doesn't mean the Intelligence Division should operate without oversight and ride roughshod over the privacy and civil liberties of New Yorkers. The FBI's intelligence operations are far from perfect, but oversight at least creates some pressure to adhere to the rules. Until the NYPD's Intelligence Division is answerable to someone outside the police department, we can't expect it to change.
Tags: Liberty & National Security, Privacy & Profiling, Transparency & Accountability
By Emily Berman – 11/23/11
Earlier this month, in a Guantánamo Bay courtroom, Abd al-Rahim al-Nashiri appeared for the first time since his capture in 2002 in the United Arab Emirates. Accused of orchestrating the 2000 bombing of the U.S.S. Cole, which killed 17 sailors and injured hundreds more, al-Nashiri was arraigned on a litany of charges, including murder in violation of the laws of war and conspiracy to commit acts of terrorism. The U.S. government is seeking the death penalty.
The proceedings bore little resemblance to a traditional criminal arraignment — usually a 5-10 minute hearing. As an initial matter, all of the primary participants (except al-Nashiri himself) had to be flown to Guantánamo for the proceedings. The prosecutors, the defense attorneys, the presiding judge, the media, trial observers from non-governmental organizations (including myself), and members of the families of some of those killed or injured in the U.S.S. Cole bombing all arrived two days in advance of the hearing.
Providing access to observers — a larger group than has been invited to observe hearings in the past — is one element of a recent government effort to increase the transparency of military commission proceedings. The effort has had varied success. To be sure, broader access to the hearings, as well as improvements in working conditions for observers who do make the trip to Guantánamo, are steps in the right direction. Another step in the direction of transparency is the closed circuit television feed that broadcast the hearing at an Army base in Ft. Meade. Although access to this broadcast was limited and it was set up at the last minute, it did permit U.S. media entities unable to send a representative to Guantánamo to observe as well. Yet documents filed in the proceedings are not always available online as quickly as observers might hope, and all aspects of detention camp operations remain shrouded in secrecy, even to those who are present on the Naval base.
Al-Nashiri himself seemed relaxed and exhibited what seemed to be a certain amount of smugness. Sitting unshackled in his white prison uniform, he was engaged with the judge and with his attorneys, and appeared curious about his surroundings. At one point, he turned to the observers sitting behind soundproof glass at the back of the courtroom and waved — an acknowledgement, according to the lead defense attorney Rick Kammen, of being in a space so much larger than any other he had seen since his capture nearly a decade ago. At least one family member of one of the victims, however, found the gesture more sinister. He saw in it an echo of the U.S.S. Cole bombers’ waves to get their victims’ attention before detonating themselves and blasting a hole in the hull of the ship.
The proceedings themselves — lasting more than four hours — addressed a number of issues, only some of which were resolved. First, al-Nashiri confirmed that he wanted to keep his current legal team. In contrast with some other detainees at the Naval base, al-Nashiri seems to have a strong rapport with, and faith in, his attorneys — led by Kammen, an experienced death penalty defense attorney from Indianapolis. He interacted with them before and after the hearing and sought their advice in responding to some of the judge’s questions. When the judge asked al-Nashiri whether he wanted any other counsel, al-Nashiri replied that his current team is “doing the right job.”
Second, in a definitive ruling in the defense’s favor, Judge Pohl issued an order barring Guantánamo staff from reading communications to al-Nashiri from his attorneys labeled as privileged attorney-client communications. For the past several weeks, al-Nashiri’s mail — even mail marked as privileged — had been subject to examination to confirm that the communication directly related to his case. Defense counsel was concerned that information communicated to al-Nashiri in confidence might find its way to Office of Military Commissions or prosecution personnel. It’s a fear that seems reasonable. According to Staff Judge Advocate Commander Thomas J. Welsh’s testimony, at least one linguist brought in to read correspondence written in Arabic was a so-called “J2” — a member of the detention center’s staff who works in intelligence. Employing intelligence personnel to examine al-Nashiri’s legal mail would seem to be overkill if the sole purpose of the review were to confirm that the mail is correctly labeled as privileged. At a minimum, it raises questions with respect to what might happen to other information gleaned from the review.
One issue to watch as the proceedings progress is the impact of the U.S.’s indefinite detention program. The defense sought acknowledgment from the government that, if acquitted, al-Nashiri would remain detained under the AUMF, which (according to the U.S. courts) allows the detention of anyone who is “part of” al Qaeda as a fundamental incident of war. While the government refused to confirm this proposition, it seems clear that the government would in fact continue to detain al-Nashiri under the AUMF even if he were acquitted of committing war crimes — at least in the present circumstances, with Congress effectively blocking any release option. According to the defense, this fact may impact several stages of the proceedings. For example, if al-Nashiri will not be released, perhaps it is safe to provide him more access to information than he would otherwise be entitled to. It could also affect relevant criteria for jurors as well as the instructions they are given. Jurors who perceive al-Nashiri as a dangerous wartime enemy might be reluctant to acquit him, even if they do not believe him to be guilty beyond a reasonable doubt of the specific charges against him, if they believe that acquittal would mean release. The information about al-Nashiri’s eligibility for continued detention could thus affect their verdict.
Perhaps the most surprising issue to arise in the hearing was the lack of clarity on the judge’s powers vis-à-vis those of the Convening Authority, the individual appointed by the Defense Department to oversee various aspects of the military-commissions proceedings and to supervise the Office of Military Commissions. Military commission rules require the defense to procure approval for any expert assistance it wishes to engage. Defense attorneys sought permission from the judge to file any requests for such approval in camera and ex parte, so as to avoid broadcasting their trial strategy to the prosecution — a procedure followed as a matter of course in federal court. The parties, however, were uncertain about whether the judge has the power to order the Convening Authority to accept filings in this manner. Exemplifying the untested nature of the military commission proceedings, even Judge Pohl had no answer. The incident thus represents one of many questions at issue at al-Nashiri’s arraignment — such as the question of whether government officials can read a detainee’s legal mail — that would not arise in federal court or a court martial, but that might need to be litigated as part of al-Nashiri’s military commission.
Finally, it is not clear when the trial will begin. The judge set a tentative trial date for November 2012, but defense attorneys acknowledge that is a highly ambitious schedule. Likely, it will be two or three years before the parties are ready to go to trial. In the meantime, all of the unresolved issues that arose last week will need to be addressed, as well as the many others that are certain to emerge. The government should soon begin to provide the defendant with discovery material — anticipated to number in the hundreds of thousands of pages. The unresolved issues mentioned above, as well as any disputes arising in the discovery phase of the trial, will be the subject of a tentatively scheduled hearing in January 2012. That hearing, as well as the rest of the proceedings in the case, likely will be available on the U.S. mainland via CCTV — though the matters of where that broadcast will be and who will be eligible to attend are, like so many other things in this case, as yet undetermined.
Tags: Liberty & National Security, Detainee Policy
By Erik Opsal – 11/08/11
Today, Attorney General Eric Holder appears before the Senate Judiciary Committee for a Department of Justice oversight hearing. This hearing comes just weeks after reports surfaced that the FBI put in place new domestic intelligence guidelines, and it is an important opportunity to press Attorney General Holder on the new rules.
The rule changes grant FBI agents a number of new powers. Among them:
- Agents reportedly can now search, with no reason for suspicion, an individual's trash to find material they can use to pressure him or her into becoming a government informant;
- They have the authority to search commercial or law enforcement databases for information about an individual without first opening an investigation or creating any records of the search, undercutting any possibility of meaningful internal oversight; and
- Agents may infiltrate political or religious groups up to five times before the FBI’s rules governing such activity (which are themselves secret) apply.
Details of the new FBI guidelines first surfaced in June. Soon after, the Brennan Center urged the Judiciary Committee to investigate the changes before they went into effect. We repeated this call in early October, but the rules reportedly went into effect on October 15.
So what’s next? Is it too late?
Emphatically, no. This issue is far too important for Congress and the public to simply throw up their hands and say “What’s done is done” — the exact result that the FBI hopes to achieve (and has achieved in the past) by implementing the changes quietly.
Today’s hearing is an opportunity for Judiciary Committee members to press Attorney General Holder on the FBI’s rule changes. Here is a list of sample questions, released yesterday by the Brennan Center, that Judiciary Committee members should ask the Attorney General:
- The FBI’s rules are intended to interpret and implement the Attorney General’s guidelines for domestic investigations. The FBI last revised its rules in December 2008, in response to a revision in the Attorney General’s guidelines. What is the justification for the current revision, given that the Attorney General’s guidelines have not changed?
- What changes have been made to the FBI’s rules other than those already reported?
- In general, greater powers call for more oversight — not less. What is the rationale for reducing internal oversight over the FBI’s domestic investigations? In cases where recordkeeping requirements have been eliminated, what mechanisms are in place to protect against abuse?
- Prior versions of the FBI’s rules have been made public, albeit with substantial redactions. Why hasn’t the FBI made any of the new rules public?
As the Brennan Center’s Emily Berman wrote in The Atlantic, “It's not too late to have a debate on these new authorities — and, if the consensus is that they go too far, to call for their repeal.”
Tags: Liberty & National Security, Privacy & Profiling, Transparency & Accountability
By Michael Price – 11/07/11
Tomorrow, the Supreme Court will hear oral argument in United States v. Jones, widely viewed as a one of the most important Fourth Amendment cases in decades and a bellwether for the Court’s approach to privacy rights in the digital age. The question before the Court is whether the Fourth Amendment requires law enforcement to obtain a warrant before secretly planting a GPS device on an individual’s car and tracking his every move for nearly a month.
How the Court answers this question will have implications for an increasingly prevalent array of location-aware technology, from vehicles equipped with satellite navigation systems to smart phones and tablet computers that store or transmit location information. Whether the government can access such information without a warrant is likely to turn on the Court’s reasoning in Jones.
One approach, urged by the government, would be to extend the logic of a 1983 case called United States v. Knotts, in which the Court held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Knotts, however, involved only the visual surveillance of a suspect with the aid of a “beeper”-style homing device (think No Country for Old Men) to ensure that officers didn’t lose the tail. Moreover, the police did not actively plant the beeper (it was inside a drum of chloroform that the suspect loaded into his car) and they limited its use to a single trip.
By contrast, the kind of electronic surveillance in Jones has a decidedly more Orwellian feel, as judges around the country have noted. Not only did federal agents have no need for visual surveillance once they secretly affixed a GPS tracker to the suspect’s vehicle, they then proceeded to monitor his every move, 24 hours per day, for 28 days.
Holding that such tracking is unconstitutional absent a valid warrant, the D.C. Circuit Court of Appeals recognized that prolonged surveillance reveals qualitatively different information than does short-term surveillance, including whether a person “is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups ― and not just one such fact about a person, but all such facts.” The court then distinguished Knotts by reasoning that unlike one’s movements on a discrete trip, “[a] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ― ‘disconnected and anonymous.’”
The Brennan Center filed an amicus brief urging the Supreme Court to affirm the D.C. Circuit decision. The brief was joined by the National Association of Criminal Defense Lawyers, the First Amendment Lawyers Association, the District of Columbia Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the Ohio Association of Criminal Defense Lawyers. Our brief argues that surreptitious GPS tracking places a significant burden on the First Amendment right to association by revealing lawful and private associational relationships and activities. It contrasts this heavy burden on First and Fourth Amendment rights with streamlined warrant application procedures that permit law enforcement in the vast majority of states to apply for warrants electronically and remotely, thereby minimizing the risk of significant investigative delay.
In fact, the agents in Jones did obtain a warrant, but inexplicably waited until after it had expired to install the GPS tracker. It is therefore difficult to seriously credit the government’s claim that a warrant requirement would unduly hinder law enforcement investigations.
Whether the Supreme Court agrees will not only determine how the Fourth Amendment applies to GPS technology, it will also set the stage for future decisions about privacy and the limits of government in the digital age. The Brennan Center hopes the Supreme Court will join the D.C. Circuit and a growing chorus of states in recognizing that when the government engages in the kind of relentless, 24-hour-per-day location tracking at issue in Jones, it generates an intimate picture of an individual’s private life that reveals far more than the sum of short-term surveillance on discrete trips. Law enforcement may have a compelling need for such information, but given the stakes, it should not be too much to ask that they communicate that need to a judge and get a warrant.
Tags: Liberty & National Security, Privacy & Profiling
By Faiza Patel – 10/04/11
Lawyers in the 1970s era political spying case Handschu filed a motion in federal district court yesterday, seeking information on whether the New York City Police Department had violated the terms under which that case had been settled. The motion was prompted by Associated Press revelations that the NYPD had monitored the daily lives of New York's 800,000 strong Muslim community, including where they prayed and ate and even where they had their hair cut.
The terms of the Handschu settlement were significantly modified at the instigation of the NYPD after 9/11. While controls on law enforcement spying on political activities were diluted, the current rules nonetheless ban the police from collecting and retaining information about innocent people that is not related to criminal or terrorist activity. The articles published by the AP suggest the NYPD was accumulating precisely these types of dossiers on Muslim New Yorkers.
While the NYPD has denied these allegations, the AP has released documents showing that many of the programs disavowed by the police did in fact exist. Earlier this month, the Brennan Center for Justice, along with Muslim Advocates and the Asian American Legal Defense and Education Fund, filed a Freedom of Information Law request with the NYPD seeking a range of records relating to these allegations.
Tags: Liberty & National Security, Privacy & Profiling
By Erik Opsal – 09/19/11
An editorial in today's New York Times calls on a New Jersey town to stop blocking a Muslim community group's attempt to build a mosque. In April, the Brennan Center, with its pro bono partner Arnold & Porter, brought suit against the town of Bridgewater, seeking to compel the town to allow the Al Falah Center to move forward with its proposal.
No Room for Tolerance
There have been a slew of local controversies in the past decade over the proposed construction of mosques and Islamic community centers. Mayor Michael Bloomberg rightly stood up for religious liberty against vitriolic opposition to the construction of an Islamic center in Lower Manhattan. With the mayor’s support, the city’s Landmarks Preservation Commission unanimously allowed the project to proceed and it is, slowly.
Such good sense is not as common as it should be. This spring, officials in Bridgewater, N.J., opposed a plan to turn an old inn, formerly used for weddings and political events, into the town’s only mosque. Rather than stand up to the opposition, stirred up partly by the Tea Party, the mayor, the township council and the planning board raced to change the zoning rules so that a house of worship would no longer be a permitted use on the inn’s property.
The application for the mosque was filed in January. Ignoring established procedures, officials rushed the zoning change so it would be completed before May 5, the effective date of a new state statute on development regulations that would have allowed the mosque to proceed under the old zoning law.
In defending its move, the township prepared a “reexamination report” that raised hazy new traffic concerns even though an earlier report found no such issues, and both the town’s traffic expert and the county’s planning board found that the mosque would have only a minimal effect on traffic. The debate has centered mostly on safety and quality-of-life objections. Mosques, like other religious institutions, are not exempt from such considerations, but objections must be backed up by studies or other hard data (missing here) and may not be used as a pretext to discriminate against a religion seeking to build a house of worship.
In June, a federal trial judge properly allowed a lawsuit challenging the town’s actions on constitutional and statutory grounds to go forward. Meanwhile, the Justice Department is conducting an investigation into whether the town’s actions violated the 2000 federal law that bars use of zoning restrictions to unreasonably limit religious structures, a possible prelude to the government’s entry into the case. Over the past month, the department has secured settlements in similar zoning disputes in Georgia and Virginia, allowing proposed mosques to proceed.
Instead of trying to justify its curious skewing of the zoning rules, Bridgewater should be seeking a resolution that permits the mosque to be built and removes a self-inflicted injury to the community’s reputation.
Tags: Liberty & National Security
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