Justice Department Faces Court Action Over Secret Tracking Memos

The Citizen's Guide to the Future
Aug. 14 2013 2:39 PM

Justice Department Faces Court Action Over Secret Tracking Memos

dojmemos

Screenshot of Justice Department legal memos on GPS tracking devices provided to the ACLU

The Justice Department is under new pressure to release secret memos that have guided its policies on covert tracking tactics.

On Thursday, the ACLU is set to argue in court that the DOJ should be forced to disclose the legal interpretations used by the government to conduct forms of clandestine location surveillance. The memos in question are particularly significant because they were authored following U.S. v. Jones, a landmark Supreme Court ruling in 2012 that forced the feds to seek a search warrant in most cases before attaching a GPS tracking device to a vehicle. However, the Jones ruling did not apply to cellphone tracking, which the DOJ still insists it can do without a warrant—even while some states have enacted laws banning all warrantless tracking, and federal courts have handed down conflicting opinions on the issue.

Advertisement

The memos the ACLU is seeking would shed light on how the DOJ is advising federal prosecutors and investigators to interpret the law. Earlier this year, the civil liberties group filed a request under the Freedom of Information Act to obtain the documents, the existence of which was first revealed by the FBI’s general counsel during a public speech at the University of San Francisco in 2012. But the DOJ’s response to the FOIA request was to send ACLU a version of the documents that were heavily redacted—almost all of the 111 pages were blacked out completely on the grounds that they were “privileged and confidential” and “law enforcement sensitive.”

The DOJ claims that it cannot publicly release the documents because they are “attorney work product” and disclosure would hinder the executive branch’s ability to freely discuss legal theories. The ACLU counters that “once those opinions become official government policy the public has an absolute right to know what they are. Otherwise, the government is operating under secret law that makes accountability to the people impossible.”

The case, of course, comes at a crucial moment for the Obama administration. It has been forced to defend its surveillance policies in recent weeks following a series of leaked secret documents on domestic and international NSA spying. A particular focus of controversy during the backlash over the NSA leaks has been the administration’s heavy reliance on secret legal interpretations of the law to justify its actions, which is apparent not only in the realm of covert surveillance but also in the domain of drone strikes. Responding to criticism about excessive secrecy, President Obama has said that he is committed to greater transparency on national security and will work to release more classified documents. Making public the tracking memos would surely be as good place as any to make a start.

Update, Aug. 15: On Thursday, the judge in the case ordered the government to provide him with a copy of the full, unredacted tracking memos so that he can review them and decide next steps. The government had argued against this course of action, so the judge's decision marks a small victory for the ACLU. The Justice Department has until Monday to turn over the memos, according to the civil liberties group. I'll report further developments as and when they happen.

Future Tense is a partnership of SlateNew America, and Arizona State University.

Ryan Gallagher is a journalist who reports on surveillance, security, and civil liberties.

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

Why Do Some People See the Virgin Mary in Grilled Cheese?

The science that explains the human need to find meaning in coincidences.

Jurisprudence

Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

What to Do if You Literally Get a Bug in Your Ear

  News & Politics
Weigel
Sept. 16 2014 7:03 PM Kansas Secretary of State Loses Battle to Protect Senator From Tough Race
  Business
Moneybox
Sept. 16 2014 2:35 PM Germany’s Nationwide Ban on Uber Lasted All of Two Weeks
  Life
The Vault
Sept. 16 2014 12:15 PM “Human Life Is Frightfully Cheap”: A 1900 Petition to Make Lynching a Federal Offense
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
  Arts
Brow Beat
Sept. 16 2014 8:43 PM This 17-Minute Tribute to David Fincher Is the Perfect Preparation for Gone Girl
  Technology
Future Tense
Sept. 16 2014 6:40 PM This iPhone 6 Feature Will Change Weather Forecasting
  Health & Science
Science
Sept. 16 2014 1:39 PM The Case of the Missing Cerebellum How did a Chinese woman live 24 years missing part of her brain?
  Sports
Sports Nut
Sept. 15 2014 8:41 PM You’re Cut, Adrian Peterson Why fantasy football owners should release the Minnesota Vikings star.