Justice Department Faces Court Action Over Secret Tracking Memos

Future Tense
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.

Ryan Gallagher Ryan Gallagher

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

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.

TODAY IN SLATE

Politics

Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.

The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.

Republicans Want the Government to Listen to the American Public on Ebola. That’s a Horrible Idea.

The Most Ingenious Teaching Device Ever Invented

Tom Hanks Has a Short Story in the New Yorker. It’s Not Good.

Brow Beat

Marvel’s Civil War Is a Far-Right Paranoid Fantasy

It’s also a mess. Can the movies do better?

Watching Netflix in Bed. Hanging Bananas. Is There Anything These Hooks Can’t Solve?

The Procedural Rule That Could Prevent Gay Marriage From Reaching SCOTUS Again

  News & Politics
Politics
Oct. 20 2014 8:14 PM You Should Be Optimistic About Ebola Don’t panic. Here are all the signs that the U.S. is containing the disease.
  Business
Moneybox
Oct. 20 2014 7:23 PM Chipotle’s Magical Burrito Empire Keeps Growing, Might Be Slowing
  Life
Outward
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
  Arts
Brow Beat
Oct. 20 2014 6:32 PM Taylor Swift’s Pro-Gay “Welcome to New York” Takes Her Further Than Ever From Nashville 
  Technology
Future Tense
Oct. 20 2014 4:59 PM Canadian Town Cancels Outdoor Halloween Because Polar Bears
  Health & Science
Medical Examiner
Oct. 20 2014 11:46 AM Is Anybody Watching My Do-Gooding? The difference between being a hero and being an altruist.
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.